Re Coldham & Ors; Ex parte Municpal Officers Association of Australia

[1988] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne	No M6 of 1988
In the matter of -

An application for writs of

mandamus and certiorari directed

to PETER ABERNETHY COLDHAM (a

Deputy President of the Australian

Conciliation and Arbitration

Commission)

First-named Respondent

KEITH JACKSON HANCOCK (a Deputy

President of the Australian

Conciliation and Arbitration

Commission)

Second-named Respondent

GREGORY ROBERT SMITH (a Commissioner

of the Australian Conciliation

and Arbitration Commission)

Third-named Respondent

JOHN DAVID SALE and ALAN WAYNE ANDREW~

Fourth-named Respondents

Ex parte -

THE MUNICIPAL OFFICERS ASSOCIATION

OF AUSTRALIA, THE STATE PUBLIC

Municipal

SERVICE FEDERATION, THE PROFESSIONAL

OFFICERS (STATE PUBLIC SERVICES

AND INSTRUMENTALITIES) ASSOCIATION

and THE ASSOCIATION OF RAILWAY

PROFESSIONAL OFFICERS OF AUSTRALIA

Prosecutors

BRENNAN J

DAWSON. J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 OCTOBER 1988, AT 10.18 AM

Copyright in the High Court of Australia

C2Tl/l/VH I 13/10/88

MR R.C. KENZIE, QC:  May it please the Court, in this matter I

appear with my learned friend, MR A.M. NORTH, for

the prosecutors. (instructed by Ryan Carlisle Needham

Thomas)

MR G.M. GUIDICE:  May it please the Court, I appear for

John David Sale and Alan Wayne Andrews who were

served with the papers in this matter on behalf of

the Architects' Association of Australia, which was

an applicant for registration of proceedings and the

respondent in the appeal. (instructed by Freehill Hollingdale & Page)

BRENNAN J:  Yes, thank you, Mr Giudice. I take it there is

no appearance on behalf of the members of the Commission?

I think we will proceed none the less

MR KENZIE:  If it please the Court.

Your Honours, this is a return of a notice of motion

in which the prosecutors, which are all registered

organizations of employees, pursuant to the CONCILIATieN

AND ARBITRATION ACT, seek the issue of writs of

mandamus directed to the respondents who are members of

the Federal Conciliation and Arbitration Commission.

The respondents, constituting a Full Bench of the

Commission, heard two appeals from the Federal Industrial

Registrar, pursuant to section 88F of the Act.

BRENNAN J:	Do you have any notes of your argument, Mr Kenzie?
MR KENZIE:	I am sorry, Your Honour.  I apologize, Your Honour.

Could I hand to the Court our outline? Your Honours,

because of the nature of the case I will have to

develop it to some extent before I actually get to the

outline, as the Court will appreciate.

BRENNAN J: Yes.

MR KENZIE:  Your Honours, I had pointed out that the respondents

were acting pursuant to section 88F of the Act and

in the appeal the prosecutors allege that they were -

and each of them was - denied natural justice in the

matter. (Continued on page 3)

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Municipal

MR KENZIE (continuing):  The appeals were appeals from a

decision of the Industrial Registrar and they

concerned the question of the registration of an

association under the Act, that Association being

the Association of Architects Australia, as an

organization of employees. The prosecutors were all objectors to that application for registration

and when the Industrial Registrar refused to

consider their objections on the merits because of

a construction which the registrar placed on

section 142 of the Act the prosecutors then

appealed to the Full Bench of the Commission

under section 88F. The Full Bench, having

overturned the decision of the Industrial Registrar
on the construction of the Act, and having

determined that issue in favour of the

prosecutors, then went on to determine the matter

finally and, as we will demonstrate to the Court,

that was pursuant to what had by then become an

agreement between the parties that that was an

appropriate course for the Commission to take.

However, the Commission proceeded to

determine the matter in a manner which was clearly

and necessarily inconsistent with a concession

which had been given by, or on behalf of the

applicant for registration, the concession being

that i f the proper construction of the Act was as

contended by the prosecutors, then it was conceded

that the prosecutors were organizations to which

the members of the applicant could conveniently belong under section 142. We will have to take the Court to the way in which that concession

developed.

(Continued on page 4)

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Municipal
MR KENZIE (continuing): Notwithstanding that concession

which we will submit was made in the clearest

terms and repeated and the subject of clear

discussion before the Commission, the Commission
subsequently went on to determine the matter by
finding that the conditions of eligibility of

the Architects' Association registerable should

be registerable so as to exclude only some of

the organiza~ions or some of the members of

some of the organiz~tions which were objectors

and the recipients of the concession. That

decision was necessarily inconsistent, as we

will submit, with the concession that was given.

The decision was given in circumstances where

the whole course :of the proceedings were such

as to induce the view that the concession

was clearly not only made by the applicant for

registration but was accepted as appropriate and

in an appropriate way forward by the Commission

and, contrary to that approach, the decision of

the Commission was ultimately arrived at and the

decision was inconsistent with that concession.

BRENNAN J: And you say the concession was all or none?

MR KENZIE:  Yes. The concession that was very clearly

given was that if the Act was to be construed

so as to give the prosecutors an entitlement

to have their section 142 case, their objections,
considered on the merits, then it was conceded
without exception that the organi.zat:ions to which

the members of the applicant could conveniently

belong. That was an unqualified concession, a

completely unqua_ified concession. N:>twithstanding

the fact that it was completely unqualified, the

decision of the Commission really appeared to

uphold a "conveniently belong" argument in respect

of some and reject it in respect of others.

BRENNAN J: Well, is the proposition this: that once they

acted upon the concession which applied in respect

of all the organizations for which you and, I think,

no discretion but to provide for the amendment of	another counsel appeared, that the Commission had
the applicant~ rules to exclude membership in respect of each of them.

(Continued on page 5)

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MR KENZIE:  No, it is slightly more complicated than

that, Your Honour. Section 142 is a little difficult because it has two parts. I will come to it directly.

BRENNAN J:	You come to it in your time.
MR KENZIE:	Broadl½ it provides that the registrar

must refuse to register an applicant for

registration if there is registered an

organization to which its members can

conveniently belong, but then goes on to give the registrar what has been described loosely as a residual, or ultimate discretion, to

register in any event. It iq not disputed

by the prosecutors that the Co1UTiission which

was exercising the jurisdictio~1 of the Industrial exercised its ultimate discretion under

section 142, one way or the other. What is

contended by the prosecutors is that the

decision of the Full Bench clearly demonstrates

that that is what they did not do. What they

did was to embark upon the exercise of
determin,ing the "conveniently belong" argument,
that is the first limb of section 142, and
they determined that argument partially against
the prosecutors notwithstanding the fact that

the concession was a blanket concession in

relation to that.

DAWSON J:  So, it was an all or nothing - - -?

MR KENZIE: It was all or nothing in relation to the

first part of section 142, Your Honour. It

was not all or nothing as far as the disposition

of the case if the Commission had felt disposed

to ultimately go on to register the applicant

for registration on the grounds that it was

generally desirable to do so, notwithstanding

the fact that "conveniently belong" arguments

had been made out.

DAWSON J: It is still all or nothing.
MR KENZIE:	Yes.

GAUDRON J: Well, is that quite so, Mr Kenzie? Did not

the Full Bench say the basis on which it allowed
the registration might be referable either
to the discretion or to the subjective issues

relevant to "conveniently belong"?

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Municipal

MR KENZIE:  Not quite, with respect, Your Honour. I will

have to come to the decision. What the Full Bench

appeared to be saying was that it was unclear

or perhaps did not have to be decided whether
general grounds of convenience intruded into the

ultimate discretion and went beyond the first part

~~f section 142. We will have to address this in

due course. It is possible, though we will say

this is not what they did- it is possible that they did

that or thought they were doing that. If they did

it on that basis they were none the less ·proceeding

to resolve the question raised by the second part

of section 142 on a basis that was inconsistent

with the concession none the less.

GAUDRON J:	Now before effect was given to the decision of the Full Bench there was another hearing, was there
not,relevant to this issue?
MR KENZIE:	The question of whether it is relevant to this

issue is perhaps a difficult one.	We would submit
that it really is not relevant to the issue.	What

happened, and this is not in the application book

but it was referred to in the affidavit originally

filed with the application for a rule nisi, was

that the prosecutors,not wanting to come straight

to the High Court . where it might have been

avoidable, asked the Full Bench to reconsider the

order on the basis that it appeared that some

error had been made or that the Full Bench had

apparently not appreciated the full force of the

concession. So that the matters which I am about

to develop before this Court were then put to the

Full Bench which then proceeded to say that it did not propose to alter its decision but it gave no further reasons for that. It is very difficult to

see that that is relevant to the present application.

It may have some marginal relevance, Your Honour,

but that is the length and breadth of what happened

there.

Your Honours, may I take the Court, firstly,

to the relevant provisions of the Act?

(Continued on page 7)

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MR KENZIE (continuing):  Your Honours, the relevant sections

appear to be these: section 40(1) of the Act

provides that:

In the hearing and determination of an

industrial dispute or in any other

proceedings before the Commission -

(b) the Commission is not bound to act
in a formal manner and is not bound by
any rules of evidence but may inform

itself on any matter in such manner as

it thinks just; and

(c) the Commission shall act according

to equity, good conscience and the

substantial merits of the case, without

regard to technicalities and legal forms.

Section 88F is the section pursuant to which the

Commission was proceeding to hear the appeal and

it provides, as has been found by this Court, the

Commission with the jurisdiction of the registrar.

It is a full appeal. The Full Bench on appeal

under section 88F is entitled to allow further

evidence to be called and, generally, to take into

account all of the things that the registrar was

entitled to look at. It has been held in a case,

which were never considered by the registrar. That is what they appeared to do

to which I will come, the BWIU case, that the consider matters

in this case and there is no complaint about that

because the jurisdiction is wide enough to allow

them to do it.

Then section 132 of the Act is the provision

relating to registration. It provides that:

(Continued on page 8)

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MR KENZIE (continuing):

Any of the associations or persons may,

on compliance with the prescribed

conditions, be registered in the manner

prescribed as an organization.

There are qualifying features which appear in section 132 to which it is not necessary to go.

Section 134 is relevant and it deals with the

situation that arises where it is necessary or

considered necessary to amend rules to comply with

prescribed conditions on an application for

registration and it provides in subsection (1)

that:

The Registrar may, upon the application

of an association applying to be

registered as an organization, grant

leave to the association, on such terms

and conditions as the Registrar thinks

fit, to alter its rules to enable it to

comply with the prescribed conditions

or to remove a ground of objection taken

by an objector in accordance with the

regulations or by the Registrar -

and gives an entitlement to the Association to

alter its rules. That is relevant because of matters

that were placed before the Full Bench in the appeal

to which I will come. Andperhaps I should also

refer the Court to section 135 which provides that:

The Registrar shall issue to each

organization registered under this Act

a certificate of registration in the

prescribed form, which certificate

shall until proof of cancellation be

conclusive evidence of the registration.

Then section 142 which provides the basis of the

objection which was taken by the prosecutors -

and this is the provision that I was referring to

a short time ago:

The Registrar shall, unless in all the circumstances he thinks it undesirable

so to do, refuse to register any

association as an organization if an

organization, to which the members of
the association might conveniently belong,

has already been registered.

The language of that is not, perhaps, without its

difficulty and it is perhaps unfortunately framed,

but it appears to provide that there is a duty

on the registrar to refuse to register in the

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event of a "conveniently belong" argument
being made out, but to provide the registrar

with what might be described as an ultimate

discretion to register, even if such a

"conveniently belong" objection has been made out.

We will submit that ultimate discretion is

not the basis of the Commission's decision in this

case. We will go on to submit that it does not

matter. It would not matter to the present case

even if it was. We will have to develop that.

The regulations are also relevant. Regulation 119

of the Conciliation and Arbitration Regulations

provides - subregulation (1):

An organization or person may, within

thirty-five days after the advertisement

of a notice referred to in the last

preceding regulation -

and they deal with applications for registration -

lodge with the Registrar a notice of

objection, in accordance with Form 31,

to the registration of the association.

(2) The grounds of objection shall be

set out in the notice and may, without

limiting the ground upon which an

objection may be made, include one or

more of the following grounds -

and (c) is the ground that is relevant here. It

is pursuant to that subregulation that the objectors

were before the Industrial Registrar and the

Full Bench.

(Continued on page 10)

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BRENNAN J: Before you proceed, Mr Kenzie, may I just say

that I have now been furnished with a letter

which is from the Australian Government Solicitor

to the Registrar advising that the members of

the Australian Conciliation and Arbitration

-~- Commission have indicated they do not wish

representations to be made on their behalf in this matter. They will abide by any order of the High Court.

MR KENZIE:  If it please Your Honour. Your Honours, I

will have to go into the development of the

matter to some extent and to the transcript of

proceedings unfortunately.

DAWSON J:  Mr Kenzie, you do not contest the construction

of section 142 which was adopted by the Full Bench.

MR KENZIE:  No. Indeed, the Full Bench adopted the arguments

of the prosecutors in relation to the construction of section 142. What had happened was that, before the Industrial Registrar, the applicant had argued

that the prosecutors, the conditions of eligibility

of which did not cover the length and breadth of
the conditions of eligibility of the applicant,

were not entitled to be heard under section 142

because section 142 really required you to have

eligibility to cover all, or substantially all.

None of the - - -

DAWSON J: Yes. Well, what I really should have asked,

no one is contesting that construction?

MR KENZIE:	No, that is - - -
DAWSON J:	So, we are just concerned with this situation

arising from the concession.

MR KENZIE:  Yes, Your Honour. Everyone proceeded on

the basis that the Full Bench decided that matter

and it was only then a question as to what the

Commission should do to determine the appeal and

we will say that that was well and truly understood

by the parties before the Commission but it is not

what happened.

Your Honours, briefly, the background - if I

can give the Court the reference to the material in

the application book - the application for

registration by the Architects Association is

found at pages 32 and following of the application

book and the rules relating to eligibility are

found at pages 52 and 53 of the application book

and all that it is necessary to say about those

is that the applicant had conditions of eligibility

which extended beyond the public sector and it had

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the capacity to enrol privately employed

architects and architectural students and

the like and the industry in connection with

which registration was sought was simply the

industry of architecture.

Now, the relevant conditions of eligibility

of the objectors is found in the application book

between pages 139 and 155. In the case of the

Municipal Officers Association, at page 139,
the Municipal Officers Association was entitled

to enrol architects who were employed loosely by

local government or by statutory corporations.

That was the extent of its entitlement. In the

case of the Professional Officers Association, at

page 141 of the application book, the entitlement

was to enrol:

Persons employed, or usually employed by

or on behalf of

(a) The Crown in the right of the States

of New South Wales and Queensland.

Certain statutory corporations in some States,

the University of New South Wales and certain
educational institutions. It is not necessary
to go into the detail of that. It is only

necessary to appreciate that the coverage was

partial but defined in particular ways which

did not ultimately tally with the break up in

the orders made by the Commission, to which we

will come.

(Continued on page 12)

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MR KENZIE (continuing): Similarly, the State Public Services

Federation on pages 148 and 149 has a coverage which was referable to employment by the Crown, or

statutory bodies representing the Crown or

instrumentalities:

acting under the control of or ..... in the

interest of the Crown.

Or:

any company ..... in which at least fifty per centum of the issued shares are held ..... on

behalf of ..... the interest of the Crown -

et cetera, and it is not necessary to go into the

detail other than to give the Court a reference to

page 150 where the coverage picks up architects and

at
naval architects, about point 5 on page 150. are set out on page 155:
Finally, the Association of Railway Professional

Any person engaged permanently or temporarily

in a professional capacity in or in connection

with the construction maintenance development
operation administration or control of a
railway or railways and/or tramway or tramways

and/or road transport and/or aerial transport -

so that there were varying degrees of coverage of

architects but it was conceded that, as far as the

conditions of eligibility of the Architects Association

themselves were concerned, the coverage of the

prosecutors was only partial. It was also apparent,
if it mattered, that the coverage in a practical
sense, the coverage of the prosecutors, was only
partial in the sense that the membership of the

Architects Association at the time that it applied

for registration was predominantly in the private

arena and only a very small number of members of

the Association at the time of its application for

registration were employed in the private sector - only a handful.

This is picked up at pages 15 and 16 of the

application book, if it please the Court. This shows
that at 30 June 1986 - there is no magic in that jate

other than that it was the date of some evidence being tendered - the membership of the applicant

was overwhelmingly in the private sector; of 496

members 470 were in the private sector. The others

were broken up in areas which were shared in various

respects or the sole province of the prosecutors.

For example, there was only one in the municipal area,

the province of the MOA.

GAUDRON J:  Does the MOA not have coverage in the State

Electricity Connnission of Victoria? It used to have.

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MR KENZIE: It does, but I think that there was some evidence

which suggested that - - -

GAUDRON J: AAESDA has the membership, yes.

MR KENZIE:  Yes, that is right. This was, in a practical

_?ense, the only involvement of the MOA was really

- - one member.

GAUDRON J: It is not AAESDA any more, is it?

MR KENZIE:  No, it is the Association of Drafting and Technical

Employees which features in the next stanza of what

I know is not exactly a thrilling story, Your Honours,

but it is necessary to develop it, at least to some

extent.

BRENNAN J: Well, we do not really need to have the facts, do we, whicr

lead up to the making of the order? The problem
is the way in which the order was made in the light

of the concession.

(Continued on page 14)

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MR KENZIE (continuing): Yes, Your Honour, subject to this:

that the Cermnission really appeared to misunderstand

that there was an agreement between the parties,

not only as to how the matter ought to be resolved

as a matter of order - the order that was to be
made -but the Commission also appeared to

-~misunderstand that there was agreement between the parties as to how the matter ought to be processed and that led them, in our submission, to the

ultimate error. So that it is necessary, in our

respectful submission, to appreciate just how the
matter did unfold, I can assure the Court that I am
not going to take a great deal of time over this, but
it is, in our submission, necessary for the Court

to understand exactly how one got to the stage

where the Commission was entertaining the concession

because it did impact upon the way in which the
matter proceeded.

Your Honours, what happened was that on 17 December 1986, the Industrial Registrar decided

the application, at first instance, and he upheld the registration of the applicant. He found that

the only organization which was an objector, which

had overall coverage, which was ADSTE, the

association mentioned a short time ago, was not an
association to which the members of the applicant

could conveniently belong and dismissed that

objection. The balance of the objections, most

of which came from the prosecutors, were dismissed

because the registrar construed section 142

adversely to the prosecutor's submissions. The

net result of that was that the Industrial Registrar

at no point considered the section 142 cases on

their merits, either on the first limb or the second

limb, that was simply not done before the registrar,

although a mass of evidence relating to that was tendered before the registrar, it was simply not considered because the registrar ultimately

decided he did not have to consider it.

There were then appeals brought on and

ADSTE did not appeal, so that the issue was squarely

raised before the Full Bench on appeal and the appeals,

on their face, raised a number of grounds. The

principle ground was what did section 142, properly

construed,mean and then the other grounds went

to the merits of the matter; the disposition of the appeal recognizing that the Full Bench could

deal with the whole matter.	Your Honours, could I
then - - -

GAUDRON J: Can I interrupt you again. It is peripheral only,

but do I take it that ADSTE has the coverage, in

practical terms, in the municipal corporations

field?

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MR KENZIE:  I think that is not so, Your Honour. There was

evidence before the r.egistrar that the Municipal

Officers Association had - - -

GAUDRON J: Eligibility?

MR KENZIE:  - - - but had more than eligibility, Your Honour,

it had membership. The actual membership was not

quantified, precisely, but it had membership, so
that the evidence before the registrar showed

order to make out the "conveniently belong" argument

that there was an involvement as well as eligibility.

it was incumbent upon the MOA to establish more

than eligibility, it had to satisfy the Connnission
that it had actually acted upon its eligibility,

enrolled people and industrially serviced them,

because "conveniently belong" means more than

simply having eligibility, it means that you are an

organization to which people can actually

conveniently belong. That was conceded.

GAUDRON J: It is the case, is it not, that ADSTE has

eligibility in all the areas which are in dispute

in this appeal as well as the prosecutors?

(Continued on page 16)

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MR KENZIE:  I am not 100 per cent confident about that,

Your Honour, but generally speaking that would

appear to be right. It would appear to be

right because the registrar accepted that

ADSTE had overall coverage and had a section 142

case. It was dismissed on the merits, not because

--of the construction of section 142. Whether

-- ADSTE had the constitutional capacity to enrol

all of the people in dispute perhaps, was not

examined, but certainly substantially all.

Your Honours, the transcript of the

proceedings before the registrar, which is

really crucial to the disposition of the matter

really commences at appeal book page 175, and

if I could take the Court immediately to that.

At this page the - I am sorry, if I said the

registrar, I mis-spoke. This is the transcript

of proceedings before the Full Bench. At this

point the Full Bench was going into the question

of what it should do if the question of law

was determined in favour of the prosecutors,

as it was. At this point the submission was

being put that it really was a matter that

should go back to the registrar because the

evidence was all before the registrar and

it had been ventilated before him. At point 5

on page 175, those submissions were put and

it was put to the Commission:

that the problem with the commission
as presently constituted proceeding

to deal with the matter would be that

it would be uninstructed by anything

the Registrar had to say about it, and

it would be uninstructed really by any

opportunity the Registrar had had to

come with any submissions -

et cetera. It was pointed out.t,at the Commission

could go on to dis~ose o·f the matter but that

the view of the prosecutors was that the matter

probably ought to go back to the registrar

for determination of the balance of the appeal.

That course of action was opposed and

on page 176 Dr Jessup, who appeared for the

applicant, said this, at about point 7:

I[ the commission were to make any substantive order, the result of which

would be that some or all of the arguments

put against us are to be upheld, then

in my submission, what the commission

ought to indicate what changes it made

by my client in its rules would entitle

C2Tll/l/JM	16	13/10/88
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it to registration and forthwith to

give leave under section 134 for those

changes to be made so that they may be

made, advertised and brought back before

the Registrar .....

Because of the size of the applicant

association, my client is aru{ious to

keep to an absolute minimum the

number of separate trips to the commission -

et cet:ern. He went on, in the third line of the

next page:

It involves me making it quite clear that 1n

running the case before the Registrar,

as I did, I elected - to use my friend's

term - not to advance any material and

certainly not to make any submissions

that any individual architect considered

as an individual working within one of
the areas ..... could not conveniently

belong -

and he points out in the next pragraph that there was

so~e cross-examination of witnesses even though

there was no evidence called by his client.

In the middle of the page, he says this:

So, I make it clear at this point it

was not already clear, that that issue

must necessarily have been decided in

my learned friend's favour by the

Registrar and if the substantive arguments
raised by the appellants here are

successful -

that is the construction of section 142 -

then we would accept that that issue

may be forthwith disposed of in their

favour by this bench. Now, that does

mean to say that I concede the

conveniently belong argument.

GAUDRDON J:	What is that qualification?
MR KENZIE:	That qualification is he could not concede

the "conveniently belong" argument because

his first submission was that the "conveniently

belong" argument had to be decided in his

client's favour because - - -

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GAUDRON J: Well, if you read the next sentence, "any

individual". If it is said that the question
of convenience is not to be determined by

reference to the individual members, which

seems to be the construction put on "conveniently"

__ by the Full Commission, then the concession has

another meaning.

MR KENZIE:	Well, in our respectful submission, a reading of the transcript simply will not support that
construction because the Commission went on to
examine - it caneback to the question and attempted
to discover for itself whether the concession really did have a practical meaning for the purpose of
section 142 and satisfied itself that it did, in
our respectful submission.

What is said by Dr Jessop in the next

paragraph is:

That any individual architect looked at

purely alone and without taking into

account the general membership of the

applicant who is employed in one of

those areas, can conveniently belong

to the appropriate association, so long

as it is registered.

And, he refers in the next paragraph to the concession:

Or should I say that contingent concession, if the commission rules that section 142

has an operation which would require the

Registrar to notionally divide up the

membership of the applicant, of my clients

and say: Well, can this group of them

belong to these people -

et cetera:

If the commission rules that that is the way

section 142 operates, then we would be
prepared to accept a ruling by the commission

that this group of them can conveniently
belong to that association and this group
can conveniently belong to that association,
so far as Mr Kenzie's clients are concerned.

So, he was making a practical concession as to what the Commission could do and he was saying

that, at the end of the case, the Commission can

treat me as having made an application under

section 134 to save us coming back again and

really take certain sections of people out of the

rules.

C2Tl2/l/SH	18	13/10/88
Municipal

DAWSON J:  Can I make sure that I understand this, Mr Kenzie?

If you go to page 16, we have the numbers. Is

what he is conceding there that the members who

are not in the private sector could conveniently

belong to the appropriate prosecutor?

MR KENz.IB:	Yes, in our respectful submission.
DAWSON J: So the five	who are in the State government

could belong to the appropriate one of - I do not

know which one·it is at the moment.

MR KENZIE:  Yes, he was conceding that the people that he

had as members could conveniently belong - - -

DAWSON J:	To the appropriate organization.
MR KENZIE:	Yes, in our respectful submission. The concession

makes no sense unless that was what was intended

and - - -

DAWSON J:  But,. of course, he was trying to maintain the

ruling of the Registrar as to construction of

142 and, upon that argument, he said they could

not conveniently belong. I follow.

MR KENZIE:  Yes, that is exactly the position in our

respectful submission. The concession was

contingent, not because there was anything remaining

in section 142, apart from the ultimate discretion

to which I will come, but it was contingent because

the argument as to the construction of section 142

was still alive.

DAWSON J: Yes.

MR KENZIE:	Had not yet been determined and the Commission was asking the parties, "What do we do if we can
determine it in favour of the prosecutors?" This
was the debate that was then taking place.
put, on the top of page 178:  Mr Justice Coldham then said, that having been

I do not quite see how we can do that if I am following you correctly.

And he talks about the prospect that the registrar's

decision would be quashed and he says this;

(Continued on page 20)

C2Tl2/2/SH	19	13/10/88
Municipal
MR KENZIE (continuing):

but as I follow you you are saying that
we could go further than that and decide

the conveniently belong issue in favour

of Mr Kenzie's clients and Mr Harris

clients under section 142.

DR JESSUP:  Well, your Honour, yes -

yes, yes, my client would have no

objection to that .....

COLDHAM J:  Despite the fact ..... that

there is no evidence upon which we could

so find, apart from your concession.

DR JESSUP:  Well, there is evidence,

your Honour, because notionally at least

all of the evidence which was before the

Registrar is before the bench -

is before the Commission, and Mr Justice Coldham

asked, "It is notionally here but we have not really

examined it".	That is at the bottom of page 178.
Dr Jessup says:

it is notionally

there, and Mr Justice Coldham says:

And you concede that the notion is as good as the substance so far as we

are concerned?

DR JESSUP:  Yes, I would liken those

circumstances to be regarded as making a
contingent application under section 134,

and perhaps the commission does not have

to go to the extent of saying these

people may conveniently-belong. If you

are against us on Mr Kenzie's point,

then I would wish to be regarded as having

made an application under section 134

to amend the rules to exclude Mr Kenzie's

clients -

and that, in our respectful submission, is clear.

There was discussion about what that would

practically involve in the next few lines and

Dr Jessup says:

All that the commission needs to do is give leave to make those changes, and then the full bench -

would be finished with the matter, and at the bottom

of that page, in the last passage about four lines

down:

C2T13/l/HS	20	13/10/88
Municipal

Your Honour, we would ask that if the

commission is against us and if the

commission does give leave under

section 34 -

it means section 134 -

that it make it fairly specific what

it is we are being given leave to do.

In other words, if I may make the

contingent submission, what is suggested

is that the leave given to make such

exclusions or provisos in the eligibility

rule which will take out those people who

are eligible for membership of the

appellants -

and unfortunately the following page does not

continue and we thought that we should notionally

include that page in the application book. We

do apologize for that, Your Honours. It seems to

cut off the sentence which might be thought to

have some importance, but it goes on, after the

words:

for membership of the appellants whom
the commission has ruled to be successful
not including PLA because they are not

here -

that is not a reference to any of the prosecutors

but another organization -

so that we can then make them and

there will be no further argument

before the Industrial Registrar.

So that what he was doing was very clearly saying

that, "This can be all ended here. You can decide

the matter and if you think there are deletions

you can make them and you can make them on the

basis of a conveniently-belong." On page 180

Dr Jessup says this, at the top of the page:

If the commission pleases, those are the submissions which I make in relation to

the section 142 construction point -

this concludes the debate on the principal matter -

My client does seek to have the matter

disposed of here. For that reason I wish to say one or two things very shortly on the second limb of section 142 -

that is the ultimate discretion, Your Honours, of

course -

C2Tl3/2/HS 21 13/10/88

Municipal (Continued on page 21A)

the discretion to grant registration

even if a section 142 case has been

made out.

Even if a conveniently belong case has

been made out my client would wish to

associate itself with those passages of

the Industrial Registrar's decision

below, that draw attention to the

professional community of interest

which exist between architects in the

same way as it did between engineers.

And it is submitted that in the absence

of anything here having cast any doubt
upon those findings of the registrar in

point of fact, then the commission may

safely rely upon them -

and he put a second submission in the next

paragraph that:

(Continued on page 22)

C2Tl3/3/HS	21A	13/10/88
Municipal

MR KENZIE (continuing):

Albeit that the commission might find that
architects in certain sections can conveniently
belong to existing organisations, there are

for all of the reasons which I have already

referred to grounds to believe that it would

be wise nonetheless to register the applicant

is its present form.

That is, with total cover. What Dr Jessup was putting

here, we respectfully submit, is that you have got the

ultimate discretion to register anyway, even if a
"conveniently belong" argument is made out. 'There

are considerations going to the general community of

interests among architects which would impel the

Commission to allow registration even if you think that

some or all of them could conveniently belong to
existing registered organizations. _He asked the

Commission to do that and, Your Honours, we do not dispute that it would have been open to the Commission

to do that because this matter was ventilated before

the Connnission. As the Court will see, we were

ultimately heard on the question of residual

discretion, the question of residual discretion being

debated in the context of the applicant seeking to

have the registration go forward in the form sought

notwithstanding the success of the"conveniently belong"

arguments.

DAWSON J: It is not possible to accept half of that submission,

is it?

MR KENZIE:	No.
DAWSON J:	Why not?

MR KENZIE: Well, may we say - - -

DAWSON J:  In other words, to say that"I would exercise my

discretion to register it anyway subject just to these

qualifications."

MR KENZIE: Well, Your Honour, it may have been open to the

Full Bench to do that. Section 142, when it comes to dealing with the ultimate discretion, really is not terribly helpful in relation to what the Full Bench

can do. It may be conceded, for present purposes,

that if the Connnission decided, or the registrar

decided, to register, notwithstanding a "conveniently

belong" argument being made out, the registrar would

not be confined to simply registering in the form

sought; qualifications could be built in. On that

basis, if that is what the Cornmission here did, then

we c·ould not complain about it. We say that it is

not necessary, however, to come to grips with that question because when one comes to the decision of

the Connnission it is manifestly clear that that is

C2Tl4/l/VH	22	13/10/88
Municipal

not what they did. It may be conceded - we would

primarily submit not, but it may be conceded for

the purpose of the present de~ate that it would

have been open to the Commission to do that, in

other words, to indicate that the "conveniently·

belong" arguments had been made out, or some of them

_had, residually, as an exercise of the ultimate

- - discretion, registration would go but that, having

regard to the evidence before the Cormnission, it

ought to be limited in certain respects. It may be

that the Commission would have been entitled to do

that. It did not do that. What it did was to

determin~ that, on grounds of convenience, "conveniently

belong," it proceeded to determine the matter adversely

to the prosecutors.

Whether it did that pursuant to the first limb

or, as might be contended against us, pursuant to

the second limb, does not matter because, on either

basis it was done on the grounds that the "conveniently
belong" argument had been only made out in part and

we were entitled to be heard, if that was the view

that was to be taken, in our respectful submission.

BRENNAN J: Leaving that proposition aside for the moment, and

turning to the state at which the Cormnission found
itself at this point of the argument, there was an·
argument that the "conveniently belong" finding should

result in the exclusion from the AAA eligibility

rules of your client's coverage - - -

MR KENZIE:	Yes.
BRENNAN J:	- - -and against that was being urged the professional

conmrunity of interest which ought to override that

consideration.

MR KENZIE:  Yes.

(Continued on page 24)

C2Tl4/2/VH	23	13/10/88
Municipal

BRENNAN J:  It would be right, would it not, for the

Commission to consider the competition between those two considerations, that is, the community of

interest and the 'conveniently belong"considerations

with reference to each of the organizations who

-~e appealing?

MR KENZIE:  It is very difficult to conceive why it would not

be open to the Commission to do that. Really, once

the Commission is exercising its discretion

ultimately under section 142 it really can have

regard to the scope and purpose of the Act and

one of the objects of the Act is the prevention

and settlement of industrial disputes so that the

Commission, we would be happy to concede, is really very much at large when it comes to the exercise

of its ultimate discretion under section 142

if there are limits.

BRENNAN J:  Your proposition is that they did not do it that

way?

MR KENZIE: That is right, Your Honour.

BRENNAN J:	Yes.
MR KENZIE:	If there are limits then they are not relevant

to this case, but our contention is that they did

not do it and it is demonstrable,in our respectful

submission. Had they gone on to do that we would

have had no complaint because as the transcript

reveals we were given, of course, the opportunity
to address on the ultimate discretion and it, perhaps,

would not have availed the prosecutors to say,

"Well, counsel was not astute enough at that point

of time to see that the matter might be broken
up." That would not be a denial of natural justice,

of course.

Now, the discussion about the residual

discretion - I do not want to take the time of the

Court - continues on pages 180 and 181. There

were apparent difficulties with it because it was

really being put that architects were something

like a club but it will not help us to say that

the case was weak. The argument was put. Then

at page 182 Mr Justice Coldham attempts to

summarize the position in relation to that and correctly does so,in our respectful~ submission.

He says:

You are postulating as I follow the
situation where we have accepted Mr Kenzie's

argument ..... rejected yours on the primary

submission - - -

DR JESSUP:  Yes.

COLDHAM J: And have thereby concluded that

these public service, public sector organisations

C2T15/l/MB	24	12/10/88
Municipal

are organisations to which members of your

association can conveniently belong, but

having regard to factors X, Y and Z or
whatever, we - I think it is undesirable

to refuse.

DR JESSUP:	Yes, that is the way I am putting
it.

And he goes on to say:

And many of the things which I have already

said can be taken into account in support

of that.

I do not repeat that. Then, if it please the Court,

the prosecutors' submissions were put and the

first thing that was put was that having heard

the submissions on the other side it was now

accepted that it would be appropriate for the

Full Bench to go forward and determine the whole

of the matter, in other words, the submissions of

the Architects Association, that they did not

want to keep going back and forward to the Commission,

were accepted as a matter of cotmnon sense and

the prosecutors accepted that the Full Bench could,
if it felt able to do so, go on to deal with the

matter. That appears on page 183 of the application

book.

,: 1 There is a general discussion about that,

which I do not think it is necessary to detail,

but at the bottom of that page Deputy President Hancock

asks this in response to the now agreed position

that the Full Bench is going to have to deal with

the whole case. He says:

Do we have the necessary material on which to

uphold the conveniently belong

contention?

(Continued on page 26)

C2T15/2/MB	25	12/10/88
Municipal

~~ ~L~~LL ~~uncinuingJ

I am going to deal with that ..... what I propose to
do shortly is to hand to the comnission which is no
rrore, no less than an aide-mem::,rie, being an index to
the transcript of proceedings.

and then the discussion went back to the agreed procedure. I do not go to that. It was rrade clear that there was no 'disagreement o,etween the parties as to what muld be an

_---= appropriate way forward because of the natters raised by the applicant_~. But on page 185, at.,,the bottom of the

page, it was submitted this:

but in order to deal with that question

alone -

that is the "conveniently belong" question

we would seek to place before the

connnission simply an index of the

transcript of proceedings before the

Industrial Registrar going to the

merits, and we see this as no more

than identifying the particular areas

which I broadly put in response to a

question asked of me yesterday by

Deputy President Hancock.

And that course of action was objected by

Dr Jessup. At about point 3 he said:

can I be heard on this ..... it is not

tendered as evidence -

and he complains about the fact that it will

be there in any event. But about point 8 he says

this:

I do object to the connnission

receiving this because there is no -
contest on the matters to which my

learned friend alluded ..... I accept,

as I said in my main submission,

that there was convenience, looked at

individually for architects in

those areas to belong to my learned

friend's clients.

Mr Justice Coldham attempts to clarify this:

you were saying that ..... if we are

against you on your primary submission,

we ought to do the conveniently belong

act ourselves, but you go further.

And Dr Jessup says:

C2Tl6/l/SR	26	13/10/88
Municipal

No, not conveniently belong.	The
secondary discretion.

So that Mr Justice Coldham had mistaken the

concession at that point and he is corrected and

Mr Justice Coldham then says:

The secondary discretion ..... I

understood you ..... but the secondary

discretion does not come into

being until we have considered the

conveninetly belong matter, does it?

Dr Jessup:  Your Honour, I thought

I had conceded that.

Coldham J:  The concede - the

conveniently belong?

Dr Jessup: Yes.

Coldham J: Well, really we are in

heated agreement ..... because on your

case the requirement to have a look

at the evidence is unnecessary.

Dr Jessup: Yes. Yes, your Honour.

Coldham J: It is an exercise which

we might undertake if we were slightly

eccentrically enthusiastic, but

oth--:-wise there is no need for us to

do so.

Dr Jessup: That is so, Your Honour.

Coldham J: Well, that is what I

thought.

That is, in our respectful submission, if one

likes,the high point of the Commission accepting

the concession that was before it and accepting

that it was just unnecessary to go into the

evidence in relation to conveniently belong, because

it was simply a waste of time for the Commission
to have to go into this mass of evidence. And

I addressed on that towards the bottom of page 187

and it is not necessary to go to that. Right at the

bottom of :he page, Mr Justice Coldham says this:

Well, supposing ..... we said in our

decision that in the event of such and

such ..... we should determine the

conveniently belong issue, and that is a

consensual approach, nobody is going to

have a crack at us in the hereafter on natural

justice or anything like that, it is a

conceded situation.

C2Tl6/2/SR 27 13/10/88

Municipal (Continued on page 27A)

And that was accepted. In other words, no ~ne was going to complain because they went on to

determine the whole matter. That was not the

point that is raised here, of course.	Then
at about point 4, I said:

Now, we are completely at one

with Dr Jessup in saying that.

And at about point 7:

we agree with Dr Jessup that the

material is before the commission,

even if notionally in the sense that

our friend referred to yesterday, the

commission is able to say that it

is a matter of concession in relation

to the public sector architects.

Coldham J: Yes.

Mr Kenzie:  - - - a finding that they

could conveniently belong to the

applicants can appropriately be made.

Coldham J: Yes.

And we said, "Well, in those circumstances, it is

just a waste of time to take the Commission through

the material.

(Continued on page 28)

C2Tl6/3/SR	27A	13/10/88
Municipal

MR KENZIE (continuing):  And that:

was as long as the commission

does not find itsel 1n difficulties,

having regard to the situation that the

matter has reached.

And Mr Justice Coldham said, "Yes."	Then
submissions were put about the residual

discretion on page 196, I do not read those,

but they are included to demonstrate that there

is no complaint about the opportunity to address

on that issue and there is a reference to

registration being sought on a general basis

and the like.

Finally, at page 191 Mr Justice Coldham

attempts to further clarify the concession.

He says this, at about point 6, about three lines from the bottom of that paragraph:

if the contingency finally comes to

this particular point - it is conceded

also that there are no fundamental
factors such as existed in ADSTE on the

co~veniently belonging to the objecting

unions.

Ultimately that question was put to Dr Jessup,

at the bottom of the page, where Mr Justice Coldham

said:

No. The concession would have to - it

seems, Dr Jessup, the concession would

have to embrace that situation,

otherwise it would not be conceding at

all.

DR JESSUP:	That is right.
COLDHAM J:	Yes, but I just wanted it
in it in black and white, virtually.
DR JESSUP: No, there are no special
factors which would run against
convenience ..... as to the appellants
here.

That wa~ so far as our analysis of the transcript

is concerned, Your Honours, that is where the

matter rested. Subject to correction by

our friends as to any matters that might be

been thought to be relevant in the transcript,

it is our appreciation that those matters

covered the debate on the concession.

C2T17/l/JM	28	13/10/88
Municipal

What followed was, of course, Their Honours'

decision which commences at page 194.

BRENNAN J: Before you go past 195, can I just ask one

question which puzzles me a little? On page 195

there is a reference to the Professional Officers

Association, but on the page that you handed
up to us this morning, page 90, the first line

says:

not including the POA because they

are not here.

MR KENZIE:  Yes. I think this is clarified, Your Honour,

because the reference on the page that we handed

up is to another body, not one of the prosecutors.

BRENNAN J: That is all right then.

MR KENZIE: It is a separate body and it was specifically

referred to in the proceedings before the

Commission and they were specifically excluded -

BRENNAN J: It might be the Federal POA, is it? Is it

the Federal POA that was not there?

MR KENZIE:  Yes. It was picked up in the next paragraph

on page 195, where there is a reference

to my having indicated:

that the unregistered associations

..... did not intend to proceed with

their applications for leave to appeal.

The remaining objectors are therefore

the five registered organisations -

my recollection is that the POA referred to on

page 90 was one of those and it was simply

described accurately by Dr Jessup as not being

here, but it was a separate body to the

prosecutors, Your Honour. It may not have been

a body at a 11, and i:t was an unregistered

association. Your Honour, the decision, of course,

principally concerns the construction of section 142

and fortunately the Court need not concern

itself with the bulk of that argument, but

on page 201 of the appeal book the Commission

says, in the last paragraph:

In our view the question of whether the members of an applicant association

might conveniently belong to an existing

registered organisation should be

considered generically rather than by
reference to those particular persons who

happen to be members at the time of the

application for registration or when the Registrar

determines the objections or any other particular time.

C2Tl7/2/JM	29	MR KENZIE,	13 /10 /88
Municipal
MR KENZIE (continuing):

In the present instance "the members" are architects and the rules of the applicant are wide enough to include all industry. The question to be considered would therefore appear to

be: might architects conveniently

belong to any and which of the objecting

organisations? ..... Once architects in

that sense are the subject for

consideration the totality of flesh

and blood members or the substantial

totality thereof need not be considered.

It would seem that the question of whether

architects might conveniently belong to any

and which of the objecting unions can be

considered in the separate context of

architects employed in the public

services of the State and the Conmonwealth

and of architects employed in or by

universities as well as of architects

employed elsewhere.

We have to say, Your Honours, the origin of that

statement is, in our respectful submission, obscure.

It does not appear to flow from anything further in

the judgment neither does it flow from any of the	submissions that were made but it does have a
bearing on what follows, in my respectful submission.
Then - - -

BRENNAN J: Does it not flow from the success of the principal

argument? In other words, if you are speaking about

not a present but a future class of people described

in a certain term, then the 'conveniently belongs"

argument must be determined in the same light.

MR KENZIE:  Yes, I am sorry, Your Honour. I was not making

myself sufficiently clear. The capacity to discuss

the matter by reference to divisions such as this

flowed from the success of the prosecutors'

principal argument. The selection of those	categories is, rather, what I was addressing and
the selection of those categories which ultimately one finds in the order did not appear to flow from
anything which was the subject of a - - -

GAUDRON J: But if you select those categories which, of

course, ignores the interests of your clients,

the conclusion reached flows logically enough.

MR KENZIE:  Yes.

GAUDRON J: Are we, then, in an area of natural justice or

plain error which is not reviewable?

C2Tl8/l/SH	30	13/10/88
Municipal

MR KENZIE: Well, we are in the area of natural justice,

in our respectful submission, because the

proceedings proceeded, for understandable reasons,
on the basis that the categories had to be looked

at as a whole. In other words, that these categories

were not to be looked at separately or - - -

GAUDRON J: What you wanted the Commission to do was to look

at them in categories corresponding with the
categories of architects who were eligible for

membership of your Association.

MR KENZIE:  Yes.

GAUDRON J: Well, I wonder does section 142 direct such

specificity?

MR KENZIE: Well, that was the matter that was really -

DAWSON J: I am not sure that I follow this, Mr Kenzie.

Maybe it is that I am dull~but could you elaborate?

MR KENZIE: Well, Your Honour, I think that what is being

suggested is that it was open to the Commission

to draw a distinction such as this under section 142

and there might have been an error in drawing it

but once they drew it the order flowed. Now, our

complaint is a more fundamental one that that.

We say that we were entitled to be heard, having

regard to the course of proceedings, before the

Commission - - -

DAWSON J: Well, what do you say they should have done?

MR KENZIE: Well, Your Honour, the Commission was obliged

to do one of two things. It was obliged to either
accept the concession as to "conveniently belong"
or reject it but, if it rejected it, it was obliged

to furnish the prosecutors with an opportunity to

be heard.

GAUDRON J:  Well, now, you do not. You must go further,

must you not? Must you not say that if they

accepted a generic approach, as they describe it,

then it was :obligatory for them to separate out

into.separate genus each category which co~ld be

as defined by reference to your associations.

(Continued on page 32)

C2T18/2/SH	31	13/10/88
Municipal

MR KENZIE:	Well, yes, Your Honour, but once one adds the words, "on conveniently belong grounds," I would be
happy to accept that. What had been conceded was generally - no matter how you split them up, whether
they were·public or private, but we were dealing with public people as far as the objectors were concerned -
they could conveniently belong.  Now, that was just

-~accepted by the applicant for registration. We do

not complain about what the Commission said on page 202

here.	We simply point to that in passing because of
what followed.	The complaint,is because of what

happened subsequently, and what happened subsequently

is that that division was arrived at, as the Court

will see, on "conveniently belong" grounds inconsistent

with the concession; that is the vice and it is in

relation to that we were not heard.

GAUDRON J: Yes, but do you not have to say that there is

something in section 142 that necessitates the

subdivision of categories by reference to the objectors

or the arguments?

MR KENZIE:  No, Your Honour. The Commission would be at

large in relation to how it subdivided categories

once it accepted that it might subdivide categories in

one way or another, depending upon the evidence, and

nothing that the Commission said here or subsequently

was necessarily inconsistent with what it might have

done had it ultimately exercised its discretion, but

it was inconsistent with the concession and that is the

vice.

GAUDRON J: Well now, I am wondering, though, if it is not

a matter that comes from the Commission having accepted

a construction that is not precisely that for which

you contended. You see, the minute the Commission

decided that the relevant final category was architects

employed elsewhere and that it was all or substantially

all of them who would have to conveniently belong, the

answer was that they could not conveniently belong to

your client organizations on that base as that

category.

MR KENZIE: Well, Your Honour, even taking it that far, that

was inconsistent with the concession, in our

respectful submission.

GAUDRON J: Yes, but the concession is predicated on an

either/or answer to the construction question.

MR KENZIE: Well, Your Honour, we respectfully submit that it

is not. It is a concession,for the purposes of the

proceedings,that the applicant conceded, for all

relevant purposes, "conveniently belong."

GAUDRON J: If your argument on "conveniently belong" succeeded

then the concession was made, and your argument was,

in substance, that the "conveniently belong" issue

was to be determined by a consideration of whether

C2Tl9/l/VH	32	13/10/88
Municipal

categories of architects, corresponding with the

architects - well, with the overlap with your clients -

could conveniently belong to your clients. But

this sentence seems to suggest that they have said,

well, certainly you approach it generically, and

then goes on to say, but that does not mean that the

-genus - well, does not go on to say, but implies that,

that does not mean that each genus must correspond

with the objecting organizations.

MR KENZIE:  Your Honour, perhaps, with respect, we read it

somewhat differently. Our contention before the

Full Bench was that the registrar was wrong in
deciding that before you were entitled to be heard
under section 142 you had to have the eligibility to
cover all,or substantially all, of the members, of

the applicant, and that contention was upheld.

GAUDRON J:	Yes.
MR KENZIE:	What the Commission went on to do on page 202 here,

was to say,_ well, you look at it generically; now,

once you look at it generically, then, for example,

the Commission would be entitled, and the registrar
would be entitled, to consider it in the separate
context of architects employed in the public services
of the State and the Commonwealth and of architects

employed in or by universities, as well as of

architects employed elsewhere. For example, it would

be appropriate to do that.

(Continued on page 34)

C2Tl9/2/VH	33	13/10/88
Municipal

MR KENZIE (continuing):  It would also be appropriate to

settle upon other grounds of distinction but it was not and
cannot be said to have been suggested by the

Full Bench in that passage, that that was the only

basis upon which you could deal with section 142.

GAUDRONJ:  That was the subdivision of categories that

cormnended itself as relevant to the Full Bench?

MR KENZIE:  Yes, Your Honour. If that is so then that is

the stage at which the prosecutors were entitled to

be heard, we submit. That is the complaint that

we make.

GAUDRON J:  You say, because you would have wished to put

another construction point if - - -

MR KENZIE:	Certainly.
GAUDRON J:	Yes.
MR KENZIE:	If it was suggested, for example, that this was

the way the section had to be construed, as it had

to be construed this way, it was impossible to make

out a"conveniently belong'argument along the lines

that had been advanced and conceded. That was

the stage at which the prosecutors were entitled

to be heard, in our respectful submission.

DAWSON J:  You would say the concession goes even to that

division?

MR KENZIE:	Yes, Your Honour.
DAWSO~ J:	They should not go further, they say, "Well,

however we divide it up the concession covers it."?

MR KENZIE:  Yes,. that is right. This is only an example of

how it might be divided up.

DAWSON J: Well, it may be the way they thought it ought to

be divided up but even so, you would say, the

concession covered it?

MR KENZIE:  Yes, Your Honour, but this was really a step

along the way in the judgment, Your Honour, but

that is what we say about it.

DAWSON J:	This was a step to them doing something which you complain about?
MR KENZIE:	Yes, Your Honour, and that is really - we did not

want to take the time of the Court by dwelling on

it but this is obviously related to what the

Commission ultimately did.

C2T20/l/MB	34	12/10/88
Municipal

DAWSON J:  Just on the generic approach, I understand, there are,as

you say, a number of categories you could posit ranging from categories which were suggested by

the rules of the organization which you represent

to broader catgories which encompass the rules

_-of more than one?

MR KENZIE:  Certainly. The Commission did not say - and

it would have been in error, in our respectful

submission, had it said, that you have got to

settle on some particular genus, or some particular

category.

DAWSON J:  Well, you would in the end to apply this

interpretation, would you not - not in this case?

MR KENZIE:	Not in this case, no.
DAWSON J:	But in another case?

MR KENZIE:  Yes, Your Honour. It has got to work, you have

got to work out what it means and you have got

to apply it. You have got to settle upon something

at the end of the day.

DAWSON J:  And you would say, "Well, those architects 'which are

employed in government, in the applicant organization,

could belong to this or that."?

MR KENZIE:  Yes, and we would not complain, for example,

if in an appropriate section 142 case that was the

ground of departure that was settled upon. But to

say that that is an appv.opriate ground of departure
or discrimination between two groups of people

under section 142 is simply not to meet the applicant's

case. Our case is not, "Well, you had to chose one

particular line of departure", but the case proceeded

on the basis that this was an appropriate line of

departure and if it was not and, therefore, the

concession really had to be re-evaluated, well,

having regard to the course of proceedings as a

whole it was manifestly unfair for the matter to	be determined in the way that it was without the
prosecutors having the chance to address on it. seizing upon any one of a number of grounds if discrimination between individuals or members of
an applicant association.

BRENNAN J: 

Unless this and the subsequent observations

of the Commission can properly be pigeon-holed into
the residual discretion area?

C2T20/2/MB	35	13/10/88
Municipal
MR KENZIE:	We say two things about that.	The subsequent

part of the judgment, to which I know I am slow

in coming, makes it abundantly clear, in our

submission that it cannot, but we go further and

we say, that even if it could, even if, for example,

it could be contended that some aspects of

_-__ Hconveniently belong" go beyond the first limb of

section 142 and into the second limb, then even

on that basis, and we say that is not what

happened, but even on that basis, the concession

was made. And the decision could not be arrived

at in a manner inconsistent with that concession.

But we say that the balance of the judgment

makes it very clear what the Commission was doing.

Your Honour, perhaps I should now then come

to the material part of the decision which is

at page 209, the second paragraph, and the

Commission says:

Therefore it follows that leave

to appeal is granted and the appeals will

be allowed in part.

Now, one assumes, Your Honours, that that is a

reference to the fact that some of the appeals were

not pressed. It does not, I do not think, have

any relevance other than that:

It remains, however, to determine what

course we should adopt.

Then there is a discussion about the general course of the proceedings and this appears:

As we followed him, Mr Kenzie for the .....

applicants and the MOA suggested that, in

the event of us finding that the Registrar

erred in the manner in which we have· found

him to have done, we should allow the appeal

but leave it to the Registrar to determine

the issue raised by section 142. On the

other hand Dr Jessup pointed out the that	the applicants had already called evidence
on the issue of whether members of the
AAA could conveniently belong ..... and that
the issue as to whether it was industrially undesirable that the AAA should be registered
was also covered in that evidence. He
conceded that the AAA had decided not to call
rebutting evidence ...... upon either of those
issues. In these circumstances, Dr Jessup
submitted, it would be appropriate thac we
decide the issues that would have been for
the Registrar to determine, had he not
concluded that the present applicants did
not qualify for consideration under section 142.

C2T21/l/SR	36	13/10/88
Municipal

Now, in our respectful submission - perhaps I should

point the Court to the next paragraph, because

the Commission then makes a determination about

what was seen as competing contentions and says

that Dr Jessup's contentions are to be preferred.

And, of course, as I have reminded the Court,

_there was just no dispute about that, because having

--heard what Dr Jessup had to say, everyone was in heated agreement, as Mr Justice Coldham said, as to

what was the right way forward. The only residual

issue before the Commission at this stage, properly

understood, was whether, in the exercise of its

residual discretion, the Commission should register

the AAA. In going into the question as to what

course should be adopted, the Commission necessarily

fell into error. Whether or not that was then

material error need not be debated. But where that

error led was to jurisdictional error, in our

respectful submission, because what they went on to

say was this:

Undoubtedly, the course suggested by

Dr Jessup is the more commendable and we

propose to proceed to a determination of

whether any of the applicant registered

organisations are organisations to which

architects included in the rules of the

AAA might conveniently belong.

That is the question they then went on to discuss

and to determine and,Your Honours, it is this that

is at the heart of the complaint of the prosecutors,

of course. They discussed the authorities in relation

to"conveniently belong:' namely, that. it is not

enough to have eligibility. They refer to a decision

of Your Honours when a member of the Commission

which looks at the convenience of the members of the

applicant. They point to the fact that there are

other decisions which tend to show that the

convenience is perhaps more widely based - the

convenience of the Commission, the public interest and

the like and they refer to those as "the broader

bases of convenience" and refer to authority. (Continued on page 38)

C2T21/2/SR	37	13/10/88
Municipal

MR KENZIE (continuing):  They say this:

We find it unnecessary however to

discuss whether the broader bases

are relevant to the convenience of

belonging or whether they pertain

rather to the ultimate discretion

imposed by section 142.

So that there might be some grounds of broader

based convenience which can go to the ultimate

discretion. They say this:

It is sufficient to state that in our view

there is nothing before the Registrar

which militated against the convenience

of members of AAA belonging to the

applicant organisations insofar as their

eligibility for membership extends to

the Public Service of the States and

of the Commonwealth.

There is, in our submission, an implied decision

there. It is expressed that there is no material
militating against the convenience of members of

the AAA belonging to applicant organisations

in relation to the areas ultimately excluded,

but there is an implied decision that people in

the other categories, ie people otherwise eligible

to be members of the prosecutors, the subject of

the evidence that was not put forward,	were in
another category.	The Commission says:

It is a consideration germane to the issue

that the actual membership of AAA is

conspicuously poor in the public sector

and non-existent in the universities.

-Nothing in the material before the

Registrar indicated that the industrial

interests of architects were better

represented and protected by extending the rule of the AAA into those sectors

of industry -

and we emphasize the words "those sectors of industry".

Your Honours, we submit that that is - however one

regards it, whether one looks at the second limb

of section 142, even if you do that - it is a

decision that people other than in the nominated

categories cannot conveniently belong to the

prosecutors. The decision simply does not make

any sense on any other basis.

BRENNAN J:  Why does it not make sense on the -basis chat the

Commission is saying that so far as "conveniently

belong" is concerned there is the basis to which

Justice Gaudron had referred in 1976, there are

other considerations which conceivably can come

C2T22/l/HS	38	13/10/88
Municipal

into a "conveniently belong" argument, but we do

not have to consider whether it is a "conveniently
belong" section or whether it is a discretionary
area, and looking at this from the discretionary
point of view, what we say is although they

can conveniently belong that they are not better

--	represented and protected, and therefore in the
exercise of the discretion we do not put them in having
regard to the numbers that are conspicuously
low.

MR KENZIE:  Your Honour, in our respectful submission,

that is not what they did. They were clearly

examining the issue of "conveniently belong",
in our respectful submission, and in saying that
they did not find it necessary to discuss whether
the broarder bases are relevant to convenience

of belonging or whether they pertained rather to

the ultimate discretion imposed by section 142,

they were necessarily acting in a manner inconsistent

with the concession. Without determining that those

matters were relevant to the second limb but not

the first, they were determining the matter

inconsistent with the concession, in our respectful

submission.

It would have been different had the Commission

said, "Conveniently belong, in the first sense,

has been conceded. We think that it might have

some relevance to the second part too, and it has

not been conceded for that purpose, and in so far
as it has not been conceded for that purpose we

can throw it into the melting pot for the purposes of exercising discretion". Even if they did that that would be relying on a finding of "conve.niently

belong'which was inconsistent with the concession

because the concession was not confined.

(Continued on page 40)

C2T22/2/HS	39	13/10/88
Municipal
MR KENZIE (continuin~):	The concession was	conveniently

belong·. It was not conveniently belong but

only if conveniently belong is regarded as

solely within the province of the first limb

of section 142. It was a concession as to

conveniently belong and - - -

BRENNAN J:  Mr Kenzie, I know that this may seem as though

it is parsing and analysing individual words which
should not carry too much traffic but what the

Commission is saying is that the industrial interests of architects were better represented.

In other words, they are not denying that they might be well represented but they are saying that

they would be better represented.

MR KENZIE:	Yes.
BRENNAN J:	Now, is that not quite consistent with the notion

that they would be well represented and protected

but it is better that - - -

MR KENZIE: Well, perhaps, Your Honour, but one has to

consider the judgment, one has to read all of the

words on the page and those words follow upon and

are dependent upon what comes before because "those
sectors of industry" is a reference to those
sectors of industry which are mentioned at about
point 4, that is, "eligibility for memberships
extends to public service of the States and of
the Commonwealth" and you only get to those

sections of industry because the Commission has

made - there cannot be any other way of looking

at it - a finding that those people cannot

conveniently belong to the prosecutors.

We would submit that whilst it is not

terribly satisfactory to attempt a close reading

of judgments like this for all purposes, one has

to try to make sense of the judgment and when one

has regard to the fact that they are expressly

engaged in the task of deciding the "conveniently

belong" argument, that is the course of action

they say they are engaged in and when you find

what appears on page 211 it would be just erroneous

to say that theft have gone through this exercise,

they have said, 'Notwithstanding everything that

appears in the judgment, for. we are not really

~oing to decide this on conveniently belong,

we accept all that but we will go on and decide

it on - - - ''

GAUDRON J: Why are they not saying eonveniently belong

is a discretionary consideration;that is to ~ay,

you read the section as a whole.	You do not
divide it up	by an examination for each
objector but you look at it as a whole?	I mean

C2T23/l/SH	40	13/10/88
Municipal

that is a construction that was not ruled out

of contention by any concession.

MR KENZIE:  No, it was not. It is a construction that is

really difficult to - - -

GAUDRON"" J: And - - -

MR KENZIE:  I am sorry, Your Honour.

GAUDRON J: Sorry, yes.

MR KENZIE:  It is a construction that is a little bit

difficult to accommodate with the words of the

statute, however, because the statute commences

with the duty on the part of the Registrar not to register if grounds of convenience are made out and then it gives an overriding discretion which, of course, is not confined to any

particular matters other than by the scope and

purposes of the Act.

The words "conveniently belong" in section 142 have to be gjven some work to do. The work that

they have to do :is that if "conveniently belong"

arguments are made out, the Registrar and the

Commission on 88F appeals are bound not to register

unless there are general discretionary considerations

that one would have thought were considerations that

were other than "conveniently belong" considerations

that impelled it to take that course.

(Continued on page 42)

C2T23/2/SH	41	13/10/88
Municipal

MR KENZIE (continuing):  Otherwise the section would be

read as saying, "Well, if someone makes out a

"conveniently belong"case you are not to register,

but on those grounds you can."

GAUDRON J:_ Can I ask you this: do you accept from the

--second last sentence, the sentence beginning,

"Nothing in the material before the registrar

indicated that the industrial interests of

architects were better represented and protected

by extending the rule of the AAA into those

sectors of industry", that there is implicit from

that and the actual result a finding by the

Commission that the industrial interests of those

who would be eligible to join your clients were

better represented by the AAA?

MR KENZIE:  Well, Your Honour, only if one comes by virtue

of the avenue of saying that they· could not conveniently

belong to the prosecutors because there is nothing

else in the judgment - - -

GAUDRON J:  But that must be the basis for - whether or not

that is a conveniently belong or a residual discretion matter we could put to one side.

MR KENZIE:  Yes.

GAUDRON J: But that must be, having stated that those matters

were the criteria for architects who were eligible

for the other associations, it must seem that in

terms of your organizations - - -

MR KENZIE:  Well, Your Honour, we are not troubled by the

argument that if the ultimate discretion was

exercised but on the grounds that they could not

conveniently - - -

GAUDRON J:	They were better represented by the AAA?
MR KENZIE:	Well, if it was decided on general discretionary

grounds, and clearly so decided, regardless of any

finding adverse to us on conveniently belong, we

could have no complaint.

GAUDRON J:  Well, now, let me ask you this: making the

assumption that on a proper reading of a Full Bench

decision, there is a finding that the interests
of the architects who could belong to your client

associations are better represented and protected

by the AAA, just if you would make that assumption?

MR KENZIE:	Yes.
GAUDRON J:	That is a matter which on any view would serve

as sufficient to activate what you call the residual

discretion, is it not?

C2T24/l/MB	42	13/10/88
Municipal

MR KENZIE:  Yes, because it goes to questions of better

representation and not conveniently belong.

GAUDRON J: Yes. Well, now, is it right in that circumstance

to argue, as I think you must, that denial of natural

_justice, that being failure to act on a concession

oy which the Connnission was not bound to act - - -

MR KENZIE:	We concede that.
GAUDRON J:	Yes, and by making a decision on a ground which would support that result, properly support that
result, is properly to be called a jurisdictional
error?
MR KENZIE:	Your Honour, it would not be a relevant error.

It really would leave us with nothing to complain about. If, in fact, the Connnission is to be taken

as having decided the question of residual

discretion - - -

GAUDRON J:	No, if it is to be taken as having decided· on a ground which would justify it exercising.the
discretion in one way, albeit that they have said that they are taking it into account on another
issue.

(Continued on page 44)

C2T24/2/MB	43	13/10/88
Municipal

MR KENZIE:  Yes, Your Honour, that would leave us without

complaint. But we say that that is, of course, not

what happened. We say it is as clear as can be. May we say this: that approach or construction

ignores the clear words of the judgment, where they

said, "What are we going to do next? The next

thing we are going to do is· decida 'conveniently

_-::belong. '" The next page and a hal£ of the

judgment are about "conveniently belong."

GAUDRON J:  Yes, but if you make the assumption that they have

said they are making it on "conveniently belong,"
they were purporting to make it on "conveniently
belong," intending to make it on "conveniently
belong," did make it on "conveniently belong," but

none the less the issue which, although extraneous

and irrelevant to that consideration, would none the

less justify the same decision on another ground,

are you then entitled to call the resultant denial

of natural justice as a jurisd.ictional error?

MR KENZIE:  Yes, Your Honour, because in that event there

would clearly be a denial of natural justice because

the course of the proceedings was plainly conditioned

on an acceptance by the parties and, in the face of

the Connnission, by the Connnission, that the
concession would end the issue of "conveniently belong"

for all purposes and if the Connnission went by way

of "conveniently belong " to a decision whic~1 it was

perfectly jurisdictionally entitled to do, that would

not answer the prosecutors' case which is, yes, it

was entitled to do it, but it was not entitled to

do it without - - -

GAUDRON J:  On tc.at ground?~ You have put all that needed to be

said on the discretion, to which you concede this

issue is relevant.

MR KENZIE:	Yes.
GAUDRON J:	You were heard on that.  You concede that-this

is relevant to that -

MR KENZIE:	Yes, Your Honour.
GAUDRON J:	- - -that this would justify a decision on that

ground; your complaint is that making it on one
ground rather than another amounts to a jurisdictional

error.

MR KENZIE:  Yes, Your Honour, because it does not matter whether

the "conveniently belong" decision is reached in
the framework of one part of the section or another.

It does not matter whether the same conclusion could

have been reached by perfectly valid means if the

road - - -

C2T25/l/VH	44	13/10/88
Municipal

GAUDRON J:	If the reason assigned - it is the reason assigned.
MR KENZIE:	Yes, Your Honour.

DAWSON J:  Do you say if you had been able to point up the

error of their ways, they might not have done that?

MR KENZIE:  That is exactly right. We do not have to prove -

GAUDRON J:- They might have assigned the right reason.

MR KENZIE:  Well, yes, Your Honour, and they would be perfectly

entitled to do so at the end of the day, so that if

a writ of mandamus issues the matter will go back to

the Cormnission and if the Cormnission is of the view,
properly instructed by the evidence and by submissions,
that it would be appropriate at the end of the-day to
exercise its discretion in favour of the applicant for
registration, on the clear basis of a finding that
for all relevant purposes "conveniently belong" has

been conceded, whether for part (1) or part (2) of

section 142, it would be perfectly open to the

prosecutors I submission on ultimate discretion." Cormnission to say, "Well, we are against the

GAUDRON J:	Or to say, "We don't accept the concession."
MR KENZIE:	Yes.

GAUDRON J: "The concession does not sit comfortably with our

construction."

MR KENZIE:  Yes, Your Honour. If that were the position the

Cormnission would be entitled to do it but what they

would not be entitled to do is to proceed to the

end of the road in the circumstances which have

unfolded in this case without notice - - -

GAUDRON J: Although you have said everything you wanted to

say on ultimate discretion.

MR KENZIE:  No, Your Honour, with respect -

GAUDRON J:  In the Cormnission you had every opportunity to

do that.

MR KENZIE:  No, Your Honour, with respect, the opportunity

that was not afforded was the opportunity to address
the Cormnissioner on ultimate discretion in the event

that the Commission did not accept the concession.

(Continued on page 46)

C2T25/2/VH	45	13/10/88
Municipal

MR KENZIE (continuing): If the Commission did not accept

the concession then the prosecutors were entitled
to be given an opportunity to address on what

should happen then. That is the gist of this

case. It is the denial of the opportunity

to address the Commission on the basis that

-- the concession is not accepted. That is the

reason that what the Commission did during
the course of the proceedings by way of accepting

the concession, or the way in which it approached

the concession is relevant. The Commission

plainly went forward on the basis that the

concession had been offered. It went forward

on the basis that it asked whether it had the

material before it in order to decide the issue .

. When objection was taken to an explanation

to the Commission of what "conveniently belong"

was all about, it went forward clearly on the

basis that it would be unnecessary and a waste

of time for the Commission to go into that
question. Now, if the Commission thereafter

changed its view and formed the opinion that

really people could not conveniently belong in some respects to the prosecutors, it was then encumbent ,upon the Commission to provide

the prosecutors with an opportunity to put at argt.IIHlt m !±at 'casis

because it was a change in the course the

hearing.

Your Honour it is this, with respect,

that differentiates this case clearly from
the case that I mentioned briefly in opening,

the BUILDING WORKERS INDUSTRIAL UNION case

which, if I might go to briefly now - - -

DAWSON J: Incidentally, the decision was handed

down, there were no further proceedings before

the Full Bench?

MR KENZIE:  N),_· the dee is ion was handed down - Your Honour

I have not, of course, mentioned the exclusions,

but I take it the Court has seen the exclusions	that the Commission inserted in the Rules.
That completed the proceedings before the Full
Bench, subject to this: that when the prosecutors
saw this decision and were concerned that the
argument that they had wanted to take place, or that should have taken place, had not taken
place, the prosecutors went back to the Commission
and asked the Full Bench to reiist the matte:- on
the basis that there had been a mistake, or a failure to understand what the concession
was all about. These matte1s were ventilated
before the Commission which then delivered a decision in which it indicated that it did not
propose to alter the orders, but it gave no reasons for that.

C2T26/l/JM	46	13/10/88
Municipal

DAWSON J:  Why was that not an opportunity to put your

point of view?

MR KENZIE:  Your Honour, it was an opportunity to

perhaps I should say this: the Commission,

on that occasion, commenced the proceedings

by saying that it was not going to alter its

decision and there was debate about whether

it would hear any submissions. In the end,

submissions along the lines that we have

advanced here were put before the Commission.

BRENNAN J:  For the purpose of asking the Commission

to hear your submissions?

MR KENZIE:  For the purpose of asking the Commission

to do that and the Commission said that it

was not going to change its course. So,

in a sense, Your Honour, it could have been
seen as an oportunity, but it was an opportunity

to do no more than say there has been a mistake

and that the matter ought not to end here;

the other exclusions ought to go in or, we

ought to be given an opportunity to be heard,
and that was not - - -

DAWSON J: But it never reopened its mind.

MR KENZIE: Not reopened, no. It was only reopened

for the purpose - if it could be called reopened -

of entertaining the complaint that we made

and that was where it went.

BRENNAN J:  You were going to take us to the BWIU case,

were you?

MR KENZIE:  I was, Your Honour.

(Continued on page 48)

C2T26/2/JM	47	13/10/88
Municipal

MR KENZIE (continuing): Your Honour, the BWill case, 62 AI.JR 81, and

coincidentally this involved allegations that the

Commission, a single member of the Commission,

exercising jurisdiction under section 88F had

denied to the applicant natural justice because

_._;Lt had determined the matter on appeal which had been conceded at first instance. The applicant

failed in its application for prerogative release

in this case because it was said by the majority

that the circumstances in which the concession

were given were simply such as to put the applicant

on notice that the concession really was not a

concession that could be given. Your Honours,

the headnote is perhaps the logical starting point.

It concerned a notice of objection to a rule change

and the applicant had sought to object to the

proposed alterations to the rules and counsel

on the other side, the counsel for the applicant

for the rule change, stated before the registrar:

that subject to statutory and factual

exceptions, he would concede "that a union

secretary is a person interested in terms

of (Reg 127(5))". The applicant's

objections were disallowed on the basis

that the.BUILDERS LABOURERS ACT had the

effect of denying him standing. He appealed,

by leave, to the ..... Commission, but the

appeal was dismissed.

Your Honour, the appeal was dismissed notwithstanding

the success of the submissions that were made before

the registrar below. The appeal was decided on

another ground which was inconsistent with the

concession that was given before the Industrial

Registrar. The Court said, with His Honour

Mr Justice Toohey dissenting, that:

There had been no denial of natural

justice -

for the reason that the concession that was made -

it was put in terms that should have put counsel

on his notice. Your Honours, this appears - I

will not take the Court to the history of the
matter - at the bottom of page 83 where the Court

says:

J

In the light of the foregoing account of the

argument before Munro J it is reasonably clear

that, whatever the effect of the concession

made at first instance, counsel for the BWIU -

that is the party giving the concession -

was asserting as a secondary aspect of the

BWIU case that the prosecutor had no personal

C2T27/l/MB	48	13/10/88
Municipal

interest. He was careful to avoid

making any concession on the appeal

similar to that made at first instance,

whilst fairly drawing attention to the

concession made below, thereby exposing the

point on appeal, though making it clear that
it was a subsidiary element in the BWIU

case.

In the circumstances as we have outlined

them the prosecutor should reasonably have

apprehended that the point had been opened up. That was the basis upon which the claim failed.

The Court went on to say the short answer to

the applicant's case was that the applicant should

have realized that the point was there, it had not

been opened up, therefore, it had never been put

before the Court under section 88F, therefore, the

ground was not made out. Mr Justice Toohey

dissented because he felt that the whole course
of the proceedings was such as to make it impossible

to say that the prosecutor should reasonably have

thought that the concession was in some way to be

undermined.

(Continued on page 50)

C2T27/2/MB	49	13/10/88
Municipal

MR KENZIE (continuing):  Now, Your Honour, that decision

is consistent with other decisions of the courts

including this Court, that if a party really

makes a mistake himself as to what the state of

play is, that mistake has been induced by his

__ own failure to appreciate what the proceedings

- - are all about, what is remaining at issue and what is not, then he has obviously no cause for

complaint. But if the other side concedes, in

clear terms, and although the tribunal does not

have to accept the concession, the tribunal

conducts itself on the basis that that concession

will be accepted, then it is a denial of natural

justice for the tribunal to determine the matter

by whatever means and pursuant to whatever

provisions on a basis that is inconsistent with

that concession without providing the person who

is the recipient of the concession, or the other party, with an opportunity of being heard and it

is in that respect that jurisdictional error

exists, in our respectful submission. That

submission is consistent, Your Honours, with

observations made by the Court in REG V DUNCAN

& ORS; EX PARTE AUSTRALIAN IRON AND STEEL

PROPRIETARY LIMITED, 158 CLR 535. Could I

take the Court very briefly to this. It was

some observations of the then Chief Justice

which were agreed in by certain other members

of the Court expressly in this case. At

page 548, His Honour was dealing with a complaint

made by the applicant that he had been given no

opportunity to address the coal tribunal and the

Chief Justice dealt with the complaint in this

way, at about point 4:

Mr Crawford was given an opportunity to

address the Tribunal and he availed

himself of that opportunity. He was

not prevented from putting whatever

argument he wished to put. It was

incumbent upon him either to address

to the Tribunal the submissions that

wished to make or to ascertain clearly

from the Tribunal whether he would be
given a further opportunity to make

submissions before an order was made.

If Mr Crawford was under a misapprehension

as to the procedure that was being followec,
it is impossible to conclude that anything

said or done by the Tribunal contributed

to his misunderstanding.

And, Your Honour, without puttirg too - I withdraw that. Those observations were agreed in by

Mr Justice Wilson and Your Honour Mr Justice Dawson

at page 567 and by Mr Justice Deane at pages 594-95,

C2T28/l/SH	50	13/10/88
Municipal

Mr Justice Deane referring in terms to the natural justice point and Your Honours

Mr Justice Dawson and Mr Justice Wilson

generally agreeing with the judgment of the

Chief Justice.

Your Honours, it does not take the matter

a long way further but it is consistent with the

submissions we make that if the course of the

proceedings,without the fault of the party who

subsequently complains, are such as to allow the

party to take a certain way forward, then that

party should be entitled to do so and unless he

has really contributed to his own mistake and

in circumstances outlined in the BWIU case, the

tribunal simply cannot, without failing to observe
the rules of natural justice, proceed to determine

the matter in a manner inconsistent with a

concession made.

GAUDRON J:  Mr Kenzie, do you go so far as to say that

every denial of natural justice or every breach

of the rules of natural justice amounts to a

jurisdictional error?

MR KENZIE:  No, Your Honour.

GAUDRON J: You accept, then, do you,that there would be some

such denials or some such breaches which would

bring section 60 of the CONCILIATION AND ARBITRATION

ACT into play?

(Continued on page 52)

C2T28/2/SH	51	13/10/88
Municipal

MR KENZIE (continuing): Yes. It may be a nice question as

to whether a technical breach of the rules of

natural justice is or is not a jurisdictional error,

or whether it is a jurisdictional error in respect

of which, in the exercise of the court's discretion

relief would not be granted. It is a nice

~question. In STEAD's case, to which I should come,

this question is generally addressed and it

certainly has to be conceded that there are some failures to observe the rules of natural justice

that would not give rise to relief. Whether or
not that is because they do not involve an
excessive jurisdiction, or whether it is because

of discretionary matters, perhaps remains in the

air.

GAUDRON J: Now, you are in the position, are you not, that

if the Commission had come down wit~ a decision

saying, "We are aware of the concessions that have

been made but we have come to the view, on the

material, that there is an issue as to whether
or not the industrial interests of these people

are not being represented by the AAA"- you could

make no complaint, could you - "and we wish to

hear the parties on that"?

MR KENZIE: 

If the way forward involved an undermining of the concession and the basis on which the

proceedings had been conducted, in our submission,

the party would be entitled to be heard. The

parties are entitled to the benefit of the course

of the proceedings. They are entitled to rely upon	the way in which the proceedings have 1 gone
forward.	It is a question of fact as to whether

what the tribunal ultimately does is inconsistent

with the course of the proceedings in our

respectful submission.  . '

GAUDRON J:  But let me take you back. If the Commission

had said, "We have come to the view that there is

an issue as to whether or not the industrial

interests are not better served by the AAA in

respect of this group of membership and we wish

to hear counsel", you could make no complaint?

MR KENZIE:  No.

It may be we could make no complaint even if we were not heard on that issue if it was

independent of"conveniently belong"grounds,

Your Honour.

GAUDRON J: Now,the next question I wish to put to you

is, if the C01mnission had come in and said, "Having

looked at all the evidence, being the evidence

before the registrar, to which we were in-vited to

look by the parties, we think the industrial interests

of this group of architects are better served by

AAA", could you make a complaint?

C2T29/l/SR	52	13/10/88
Municipal

MR KENZIE:  No.

GAUDRON J: Now, if then they said, "What do you submit

the consequences of that are, Mr Kenzie?", what

would you say?

MR KENZIE-:-- Your Honour~ perhaps the answer I gave to

Your Honour was too hasty. The answer to Your Honour's

last question was, no, unless it was clear that

in arriving at that conclusion the Commission was

acting contrary to the concession that had been made

and accepted in the presence of the parties.

GAUDRON J: "We are aware of the concessions, we are not

proceeding to dispose of the matter because we

have come to the view, on the evidence, that the

interests are better represented".

HR KENZIE:  Yes, well that would involve no departure from

the concessions and would involve no complaint.

(Continued on page 54)

C2T29/2/SR	53	13/10/88
Municipal

GAUDRON J:  No, and then they would say to you, we assume,

"Mr Kenzie, what is the consequence of that

finding?" and - - -

MR KENZIE:  Your Honour, the consequence of that finding

would be that registration would follow, presumably

in the exercise of discretion, on grounds that were

consistent with the concession.

GAUDRON J:  Now, if instead of saying to you, "Mr Kenzie,

what is the consequence of that finding?" the

Commission proceeded itself to state the consequence of that finding; could that really be

said to be a jurisdictional error?

MR KENZIE:  If the Commission, in reaching that finding, or

if the Commission made a finding which had a

consequence which was inconsistent with the

concession then, in our respectful submission,

that would be a decision reached in breach of the

rules of natural justice - - -

GAUDRON J:	Even -
MR KENZIE:	It is not this case, Your Honour, but even - we would

put it that high.

GAUDRON J:	Well, it may not be this case.
MR KENZIE:	In our submission, it is not this case, Your Honour,_

yes.

GAUDRON J:	You did say, did you not, earlier, that 1f one came to the conclusion that what the Commission
said wa~ that the interests of this group of AAA
were better served by AAA than by your clients,
it is this case, is it not, ex~ept for the
intermediate step?
MR KENZIE:	Your Honour, yes, it is, and we have conceded

that if the Commission, properly understood, was

applying the second part of - - -

GAUDRON J:	No, if the Commission said, "That is our view and it is a view we have reached and we think that
determines the "conveniently belong" issue", and they were wrong on that?
MR KENZIE:	Your Honour, that is the stage at which we say

that natural justice requires the party to be heard.

GAUDRON J:  Yes, I understand that. What I am putting to you

is, i~ it fairly categorized as a jurisdictional

error if, instead of proceeding to state the

consequence - I am sorry. Is it properly

categorized because they proceeded to state the

consequences which you would have had to concede

if called upon so to do?

C2T30/1/HS	54	13/10/88
Municipal

MR KENZIE:  Your Honour, it is a question of fact as to

whether the avenue by which the Commission gets

to its decision is consistent with the undertaking
or otherwise. If it is consistent with the
undertaking or able to be reached on grounds,

and was reached on grounds consistent with the

concession, then perhaps, if the decision

in some way impacts upon the undertaking, nice

questions would arise, but we simply say that

is not this case, Your Honour.

GAUDRON J:	Yes, I understand that.
BRENNAN J:	Mr Kenzie, whether this case is one of denial

of natural justice or not, along the lines which

you have been discussing with Justice Gaudron, depends

upon the construction one places upon the judgment.

Is that correct?

MR KENZIE:  I think it must, Your Honour. A construction

that one places upon - yes -

BRENNAN J:	The reasons for decision.
MR KENZIE:	- - - the reasons for decision, yes. It really

must because the orders would be consistent with

an exercise of discretion, br may be consistent

with an exercise of ultimate discretion.

BRENNAN J:  Yes. Now, if the reasons for decision are

ambiguous - let us put it no higher than that - and

if an order were made of certiorari and mandamus

I suppose a good return to that order would be, "We

have already exercised our decision according to

law, our expression of it was defective. We now

make it clear".

(Continued on page 56)

C2T30/2/HS	5 5	13/10/88
Municipal

MR KENZIE:  Yes, that is so, but, of course, that is

assuming that that is what the Full Bench has done.

We do not dispute that, Your Honour.

BRENNAN J:  Yes. I just wonder whether this Court, in

determining the application that is now made to

-..it, where that rests upon a construction of reasons

for decision is not constrained to adopt such

reasons, or give the reasons such a construction

as might reasonably be given to it so as to support

the validity of the power which is exercised?

MR KENZIE: Well, Your Honour, it may be conceded that if

the case was one of genuine ambiguity the Court

would certainly not strain to read the judgment

as involving an excess·of jurisdiction.

BRENNAN J:  Yes. No, I put it only on the basis of

reasonable.

MR KENZIE:  Yes, Your Honour. I think I could not argue

to the contrary. If the Court formed the view
that this judgment was fairly open to the proposition

that what had been done involved the exercise of

a general discretion and did not involve anything

inconsistent with the concession then, presumably,

the Court would lean in favour of that construction

if it were reasonably open.

BRENNAN J:  Can I Just ask you one further question? If

the Commiss.ion were minded to act fully upon the
concession and therefore to find the issue of
conveniently belong in ;avour of your clients,

was there anything necessarily inconsistent with

acting upon that discretion to make a finding

that the architects would be better represented

by the making of an order of the kind that was

made?

MR KENZIE: Well, that really involves an analysis of the

way in which the whole case went forward.	We
would submit - but we would have to concede at
the same time	that the Court does not have all of

the evidence before it - our submission would be
that it really would be inconsistent with the whole

course of the case and the evidence before it

because that sort of distinction was never relevant

in the proceedings. Indeed, so far as one can

tell the first time it emerged was in the orders.

GAUDRON J:	Why would it not be relevant to the residual discretion?
MR KENZIE:	Well, Your Honour, it could have been done, we

do not say that it could not have been done, but

we say it is difficult to understand in the proceedings

how it was done. But we cannot say that it could

C2T31/l/MB	56	13/10/88
Municipal

not have been done because our general concession -

if I can put it that way - is that the Court's

residual discretion is very wide.

DAWSON J:  Can I put something in a brutally frank way to you,

--Mr Kenzie? The matter was sent back to the

Full Bench. They having decided that this was

the desirable result, it is unlikely that they

would come to any other conclusion even if they

had to place their reasoning in the right

pigeon-hole, namely, a residual discretion

rather than conveniently belong.

MR KENZIE:	With respect, no, Your Honour.
DAWSON J:	Why?
MR KENZIE:	If the Commission formed the view that - if the matter went back before the Commission and
submissions:were put before it that the Commission was in error and its decision was inconsistent
with the concession, then the Commission would have to consider that question. It does not
appear - - -

DAWSON J: That question - - -

MR KENZIE:  That is the question of whether it was - the

concession was a concession that was properly made

on the evidence.

DAWSON J:  Well, what if they say, "We are wrong about

that. We have to come to conclusion however you

approach this,the 'conveniently belong'argument
covers all of your clients, but we expressed the

view that it was desirable, that this be the

particular result and we remain of that view and

we now justify that under the heading of general

discretion and, furthermore, we do not want to hear you on the question of general discretion,

we have heard you already on that."? (Continued on page 58)

C2T31/2/MB	57	13/10/88
Municipal

MR KENZIE:  Well, Your Honour, we say two things in

relation to that. The first is that if anything

else is clear, it is not for the prosecutors

to satisfy the court that the matter would

be decided differently if the prosecutors were

heard. The authorities are very clear on that.

Unless it can be demonstrated that the matter must have been decided in the same way, the

prosecutors are entitled to relief, in our

respectful submission. So that even if

Your Honour's frank question received the -

DAWSON J:	I had in mind that the relief is discretionary really, but - - ~
MR KENZIE:	Your Honour, we would say two things about

that. Firstly, the authorities are very clear
that the onus does not lie upon the prosecutor to demonstrate that the matter must be decided

differently. What is at issue is the opportunity

that the prosecutors would have to put

their case before· the Commission on a proper

and considered basis and to have it received

on that proper and considered basis.

If the Court is with us in our primary submissions, it is with us, presumab1y,

because the Court has formed the view that

the matter did --noc proceed on an appropriate

basis and the &~t really cannot assume

that if the matter went forward on an

appropriate basia it would have the same result.

That is a matter that is relevant to our

entitlement and discrecion.

DAWSON J:	I do not want to prolong the argument, I think I am really going over the same ground, but why cannot you assume that if the Commission
has expressed its view upon the matter.

MR KENZIE:  No, Your Honour, with respect, the

error that exists there is to assume that

the Commission has expressed its view on
the matter. If the Court is against us

and takes the view that the Commission has

exercised its general discretion, well,

we go no further. We only get to this

question if the Court is with us and decides
that the matter has not gone forward on a
proper basis. If the matter has not gone forward

on a proper basis then the question arises:

in the exercise of the Court's discretion should

mandamus go? In our respectful Jubmission,

the issues that ~re relevant there are the

issues that are caught up in parties having

the right to present their case fully and

adequately~

C2T32 /1 / JM	58	13/10/88
Municipal

BRENNAN J: If they had forgotten the concession when

they were exercising the discretion, who knows

what they might say if they remember it.

MR KENZIE:  Quite, Your Honour, but we do not get that far. :U: the Court is

against us on the residual discretion question

well the case ends there. If the Court is
with us then we say that both on grounds of

substance and discretion the Court would grant

relief and the prosecutors would be entitled

to relief on substantive and discretionary

grounds.

Your Honour, could I in that vein

simply refer the Court very briefly to

two authorities on which we rely, in relation

• to the entitlement of people to put their case

forward on a proper basis? We, of course,

rely on STEAD's case. This is STEAD V STATE

GOVERNMENT INSURANCE COMMISSION in 161 CLR, 141.

This was a case where the Court indicated to counsel that certain evidence would not be

accepted and counsel relied on that. At the

bottom of page 141, in the: 

closing address the plaintiff's counsel
submitted that the judge should not
accept the doctor's evidence, whereupon

the judge said: "I don't accept

Dr. Scanlon on that. You needn't go

on as to that." Counsel did not pursue

the matter. Judgment was reserved.

In the judgment the judge accepted the doctor's evidence on the point in question and that

matter ultimate came to be determined by

this Court.

(Continued on page 60)

C2T32/2/JM	59	13/10/88
Municipal

MR KENZIE (continuing): The Full Court said, at page 145,

that the court below, having focused attention

on the question of whether it would have made any difference to the result, this Court said

this:

The general principle applicable in the present circumstances was well expressed by the English Court of Appeal

in JONES V NATIONAL COAL BOARD, in these

terms:

"There is one thing to which everyone in

this country is entitled, and that is a

fair trial at which he can put his case

properly before the judge .... No cause is lost ur .. til the judge has found it so;

and he cannot find it without a fair

trial, nor can we affirm it."

The general principle is, however,

subject to an important qualification

which Bollen J. plainly had in mind in

identifying the practical question as

being: Would further information possibly

have.made any difference? That qualifi~ation

new trial if it woi, 1 A inevitably result in	is that an appellate court will not order a
the making of the -corder as that made
An order for a new t-ial in such a case by the primary judge at the first trial.
would be a futility.

For this reason not every departure from

the rules of natural justice at a trial will

entitle the aggrieved party to a new trial.

And, Your Honour Justice Gaudron, this is the matter

to which I was briefly adverting:

By way of illustration, if all that happened

at a trial was that a party was denied the
opportunity of making submissions on a

question of law, when, in the opinion of the

appellate court, the question of law must
clearly answered unfavourably to the

aggrieved party, it would be futile to
order a new trial.

Where, however, the denial of aatural

justice affects the entitlement of a party	to make submissions on an iss1.1 e of fact,
especially when the issue is whether the
evidence of a particular witness should be
accepted, it is more difficult for a court of appeal to conclude that compliance with

C2T33/l/SH	60	13/10/88
Municipal

the requirements of natural justice

could have made no difference.

And, at the bottom of the page:

It is no easy task for a court of appeal to satisfy itself that what appears on

its face to have been a denial of natural

justice could have had no bearing on the

outcome of the trial of an issue of fact.

Then, at the bottom of page 146:

It is natural that Bollen J. expressed himself as he did in the passages which we

have quoted. He was conscious that, not

having seen the witnesses, he could not

evaluate their evidence ..... It is for this

very reason that, in our view, the Full

Court was disabled in the circumstances

of this case from reaching a sound

conclusion that a new trial in which the

applicant's counsel would have an

adequate opportunity of presenting

submissions on the issue of causation

could make no rlifference to the result.

Alternatively, if the Full Court

is properly to be understood as saying

no more than that a new trial would

probably make no difference to the result,

Their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural

justice deprived him of the possibility

of a successful outcome. In order to

negate that possibility, it was, as we
have said, necessary for the Full Court

to find that a properly conducted trial

could not possibly have produced a

different result.

And in the following paragraph, after a reference to

BALENZUELA, this appears:

· There the Court ordered a new trial

because material evidence was wrongly

rejected. It would have been otherwise

had the respondent been able to demonstrate

that the rejected evidence could have made

no difference to the result.

And, Your Honours, we rely on those principles and

they go to matters of substance, of course. As far

as matters of discretion are concerned, without

inviting Your Honours to open the report could we

C2T33/2/SH 61 13/10/88

Municipal (Continued on page 61A)

simply give a reference to the decision of

the New South Wales Court of Appeal in

ESCOBAR V SPINDALERI, (1986) 7 NSWLR 51.

This was a case - I do not take the Court to

it - but a case where it was found that an

opportunity to address had been denied, even

though the tribunal had obviously acted

reasonably but the president, on page 57,

went to questions of discretionary relief

and we refer to the observations of the

president there in relation to the matters

discussed-by Your Honour Mr Justice Dawson,

namely, the importance of having the ma~ter

proceed properly and the entitlement to

relief on matters going to discretion as

well as substance.

(Continued onpage 62)

C2T33/3/SH	61A	13/10/88
Municipal

MR KENZIE (continuing):  Now, Your Honours, in our respectful

submission, jurisdictional error occurred and

is demonstrated. It is not for the applicant to

demonstrate that the matter must have been decided

differently. Had it proceed properly, in those

circumstances, we submit that mandamus would go.

~~here is an order - or certiorari is also sought but it really is, if we are right in relation to

mandamus, it would seem -

BRENNAN J: Well, it is incidental to the mandamus.

MR KENZIE:  It is incidental to the mandamus and it is

probably inappropriate~perhaps, Your Honour, but
we otherwise do not seek to address in relation to

certiorari unless the Court wants to hear us. The

principal claim is plainly mandamus.

BRENNAN J:  Thank you, Mr Kenzie.

GAUDRON J: Well, I am sorry, Mr Kenzie, I think I should give

you an opportunity, if you wish to say something,

on any limitations on the grant of relief by reference

to section 60 on the consideration that what was done

might have been referable to a head of power and

might be categorized as bone fide exercise of the

power. Do you follow what I mean?

MR KENZIE:	I do.
GAUDRON J:	Yes.
MR KENZIE:	Your Honour is referring to HICKMAN and FOX V

CLINTON and the like, and RE COLDHAM?

GAUDRON J:  Yes. Really, what I wish to give you the opportunity

to say is to say why that does not apply in this

situation.

MR KENZIE: Well, Your Honour, we submit this: that

consideration is relevant to the claim for certiorari

but, in relation to the claim for mandamus under

section 75(v) if there is an error of jurisdiction,

there is an error of jurisdiction and one is not

confined to the issues that were discussed in

RE COLDHAM.

GAUDRON J:  You do not accept that there is any limitation on the

75(v) power by reference to the consideration that it

is referable to a head of power and a bone fide

exercise of that power?

MR KENZIE:  I am sure I cannot immediately and adequately answer

Your Honour but, to the extent that the authorities

assist, they suggest that prohibition will go under

75(v) for denial of natural justice and do not suggest

a limitation which is the sort of limitation that was

discussed in RE COLDHAM, The different considerations

C2T34/l/VH	62	13.10.88
Municipal

would exist if the entitlement was statutory and not

under section 75(v). In our submission, mandamus would

go in the event of proven excessive jurisdiction.

BRENNAN J: But, of course, the way in which section 60 operates

is to expand the area of authority of the Com mission, is it not?

MR KENZIE-:	Yes.
BRENNAN J:	So that 75(v) only arises when section 60 has done

whatever work is assigned to it.

MR KENZIE:  Yes. Your Honour, obviously, Your Honour's

question deserves a better answer than the one that

I have given it. I do not know if the Court would be

assisted in relation to section 60. Perhaps having

heard my friend, we would endeavour to put something

more useful to the Court.

GAUDRON J: Well, ~hat might ~ea conveni~nt course, if it

is -conven-ient to you.

BRENNAN J:	Yes.
MR KENZIE:	Yes, I am sorry, Your Honoµr 7 it plainly deserves

a better answer than that and perhaps if we can put

that on the notice board temporarily.

BRENNAN J: Well, depending upon th2 length of time Mr Guidice

takes, you might have an opportunity to consider

it later today.

MR KENZIE:  Yes, Your Honour.

·,

(Continued on page 64)

,L'

C2T34/2/VH	63	13/10/88
Municipal

BRENNAN J:	Yes,. Mr Giudice.
MR GIUDICE:	Could I hand to the Court an outline of

argument. If the Court pleases, it is contended

that the decision of the Full Bench did not involve

any breach of the rules of natural justice

-~because the factual basis that the prosecutors

rely on cannot be made out. And the Court could

not conclude that the prosecutor did not in fact

get a fair hearing. Could I summarize the relevant

submissions made by counsel for the architects

before the Full Bench. Firstly, it was submitted

by my learned friend,Dr Jessup, that in applying
the "conveniently belong" concept, it is the

convenience of all or substantially all of the

actual members which must be taken into account

and that was the approach which had been accepted by

approach for which the appellant objectors contended, then the Architects Association

the registrar. Then, Dr Jessup said that if the of the generic

would accept a ruling that members of AAA could

conveniently belong to the prosecutors on an

organisation by organisation basis. And I will not

take the Court again to that particular passage

in Dr Jessup's submissions. But it is relevant,

in my submission, that the concession was limited to

convenience on an organisation by organisation basis

because Dr Jessup went on subsequently to make

a very clear distinction between that kind of

convenience and the issue of the common vocation

approach.

BRENNAN J: But can that be right, Mr Giudice? At this

stage the proceedings before the Full Bench of the

Commission were concerned with the construction

of section 142 and the competition between the two

views that were being advanced as to the construction of section 142. And it was only on the hypothesis

that the argument of Dr Jessup failed, that he

was making any concession at all, is not that so?

(Continued on page 65)

C2T35/l/SR	64	13/10/88
Municipal

MR GIUDICE:	That is so, yes.
BRENNAN J:	So it is on the basis of a generic construction of section 142 that he makes the concession.
MR GIUDICE:	That is so, Your Honour, but he makes it in terms

-~- which make it clear that he is conceding

convenience in relation to individual objectors and

I only draw attention to that, Your Honour, because

I think it is important when one comes to consider the way the argument was put on the

residual discretion or the ultimate discretion

_ question, because clearly Dr Jessup relied on

the community of interest- as a countervailing

factor by comparison with or contrast with the

convenience which he had in fact conceded, as it

turned out, in reJation to individual objectors.

BRENNAN J:  WaB the concess~on· one that was being made for

the purposes of section 142, in the event of an

unsuccessful argument on the p9~_t.:<2f Dr Jessup's

clients? In other words, if Lhe argument went

against Dr Jessup on the~construction of section 142,
was the concession intended to reeull in leaving

to the Commission no area for decision making

except under the residuary discretion.

MR GIUDICE:  Tha~ is so, Your Honour, yes. I think that ~ust

be taken to be correct from the material. There
is, however, a difficulty which I will come to
which is how one characterizes this common vocation

approach, which I will come to, as wherher

~ one reg-atds Lia t as more appropriate to be looked

at undei the 'bonveniently beloni'question

spec:':-fically that limb of section 142, dr whether

it is a consideration more relevant to the
exercise of the ultimate discretion, it will

be submitted_that it does not matter for present

purposes.' ·

(Continued on page 66)

C2T36/1/HS	65	13/10/88
Municipal

MR GIUDICE (continuing):  Now the concession then, if the

Court pleases, was made in those terms but if I

could take the Court to what Dr Jessup said about

the ultimate discretion and that appears at

pages 180 to 182 of the application book and I

-will not read all of it, but just one section at

page 180, commencing in the second paragraph.

My learned friend,Mr Kenzie,read the passage, I will

not read it again, but it does refer to the
decision of the registrar and could I then, perhaps,
take the Court to the registrar's decision, because

that is, after all, what was being reviewed by the Full

Commission and on page 161 of the

application book the comments appear which

Dr Jessup had referred to in his argument in relation

to the ultimate discretion. So Dr Jessup was

suggesting that these findings by the registrar

were available to the Full Commission regardless of

the outcome of the "conveniently belong" question.
And that is the specific question as to the
appropriate test. If I could commence reading at
the second paragraph on page 4, where the tndustrial

Registrar said:

A claim to -

and he is quoting here from the ENGINEERs· case -

a separate registration based upon

that community interest that flows

from the pursuit of a common vocation,

whether that vocation be common to the

members because of their training,

technical or academic qualifications or

because of the particular industry in

which they are employed is a reasonable

one.

And then going down to the second-last paragraph on the page the registrar goes on:

(Continued on page 67)

C2T37/l/SR	66	13/10/88
Municipal

MR GIUDICE (continuing):

The decision in the Professional

Engineers Case said in respect of the

fourth statement of principle set out

above: "It is the very claim which is

made in the present case" and went on to

say that the Court accepted as the purpose

of the application that the applicant aimed
at representing all engineers qualified

in terms of its conditions of eligibility

and in light of that purpose, a perfectly

legir.imate one, it had not been demonstrated

that.the persons who would become eligible

might conveniently belong to the organizat~ons

named in the objections. What the Court

there had to say is eqvally applicable to

the present application. ,bl

During the course of the proceedings,

Mr Weaven appeared on behalf of the. A11st1".'alian

C~uucil of Trade Unions and referred me to

the Council's policy on union amalgamation

and registration. That statement of policy

included the followin~:· •; qi'

·"The ACTU should not oppose the registration

of new unior~ where such unions are bona fide

organizations of workers and where such

registration is a necessary and genuine

means of extending or promoting union

organization beyond that which it is possible

to acli.ieve t'J:',-,ugh existing unions." ,.

.,

In my ~iew, AAA is a bona fide organizat~on

of·workers and-its registration is a necessary
and genuine means of extending union

organizations beyond that which it_ is

possible to ac~ieve through existing unions.

I am satisfted that there is no ground

of objection justifying the refusal of the

application for the registration of AAA.

If the Court pleases, those passages encapsulate what

I have referred to as the common vocation argument that Dr Jessup adopted. Now, it can be seen from

the registrar's decision that he upheld that argument

on a general basis and that he relied on it in

dismissing all of the objections and not just the

objection of ADSTE, the only objector which the

registrar found to have a section li2 argument

potentially available to it.

C2T38/1/MB	67	13/10/88
Municipal

MR GIUDICE (continuing): That was because of its ability to

cover all of the membership of AAA in contradistinction
to my learned friend, Mr Kenzie's, clients. And, of
course, it is clear, and I do not ask the Court to

turn to it, that the registrar considered - and it is

---set out at page 159 of the application book - the

registrar considered that he had a general discretion

under section 132 and he was exercising that general

discretion in relation to objectors other than ADSTE,

the subject of proceedings in the court.

Now, if it please the Court, counsel for the

prosecutors was aware of the submission made by

Dr Jessup under the ultimate discretion, limb, of

section 142. He did not go to that; he did deal with

that submission and had the opportunity to say what

he wished about it. He did not go in terms to the

common vocation argument at all. Next, it is submitted
that, as the courts are now aware, the Commission

decided in favour of the generic approach to the

question of convenience, but we would submit, by

implication, adopted the common vocation argument,

a course which was clearly open to it, one within its

jurisdiction and one which was quite consistent with

the concession that had been made by counsel for AAA.

Section 142, after all, gives the registrar discretion

to register if he thinks it undesirable to refuse

to do so. That was clearly the provision, in my

submission, governing the Full Bench's discretion as

well.

Whether the common vocation argument is relevant

to,:a consideration of whether members of the applicant

can conveniently belong to one or more of the

objectors, or whether it is more properly a consideration

to be bome. in mind in the exercise of the ultimate

discretion conferred by section 142, is _not, it is

submitted, of importance in the overall context of

the proceedings.

(Cpntinued on page 69)

C2T39/l/VH	68	13/10/88
Municipal

DAWSON J: Although the Full Bench said it was not or

that it did not matter on which basis you put

it, and then made their observations.

MR GIUDICE:  I think that is so, Your Honour, yes. The

~egistrar had clearly accepted that argument,

---- not only on a "conveniently belong" argument from ADSTE but also an an exercise of his

general discretion. The argument and the

Industrial Registrar's acceptance of it were

relied upon by a AAA before the Full Bench

and the Full Bench, although correcting the

Industrial Regi~trar's formulation of the

approach to convenience. declined to upset his decision exc~pt in relation to persons

employed in the puolic services of the

Commonwealth and the States and that result

.incidentali'y mirrored the dec:..::.ion in the

¥ROFESSJ:ONAI;. ENGINEER~' c~se and could not,

therefore, be said to be without precedent in

the Commission, in cases of this kind. , • I, •• ~

µ~ Could I refer the Cburt briefly - I

BRENNAN J: What is the reference to th~·PROFZSSIONAL

ENGINEERS' case? It is probabl) ~o be found in

the Commission's de?ision, is it?

MR GIUDICE:  It is reported in 73 CAR at page 134.

BRENNAN J: Well, now, is that to be found in the Commission's

decision, a reference to that case?

MR GIUDICE:  The Commission referr~d to t~at case on page 211

of the application. book, in the ·

last sentence in the big paragraph on that page

where ~he Commiss~on had indicated that it would

extend AAA's eligibility into the public sector.

It went on to say that the position _may change

subsequently in the way it in relation to the

APAEA, the PROFESSIONAL ENGINEERS. (Continued on page 70)

C2T40/l/SH	69	13/10/88
Municipal

MR GIUDICE (continuing): I think the history of it is

that when the professional engineers were

originally registered, there was an exclusion

in their rules which did not allow them to

travel into the area of employment in the

public services. That exclusion was

subsequently deleted.

BRENNAN J: Perhaps you can tell me whether the basis

on which the PROFESSIONAL ENGINEERS' case was

decided was the basis of a better representation
by the PEA and whether that is, as it were,

part of the common law of the Commission?

MR GIUDICE:  Your Honour, it was decided on that basis,

although I think in fairness I perhaps should

point out that I think it was really considered

more in terms of the convenience question.

BRENNAN J: That is what I was wondering.

MR GUIDICE:  Yes.

DAWSON J:  But was it put on an alternative basis? I thought

you were saying it was.

MR GIUDICE:  Your Honour, it is difficult, as the

Full Bench observe towards the end of the decision

when analysing all of those "conveniently belong"

cases to always say whether the arm of the

Commission which is dealing with the matter

is looking at 'conveniently belong' as a separate

and discrete question and then the residual

discretion of the ultimate discretion. Sometimes

it is looked at, as it were, all rolled into

one; at other times it is divided up in what

may be an artificial fashion.

DAWSON J:  Do you say here that they were looking at

it all rolled up into one, to use your words?

MR GIUDICE:	That is so, Your Honour.
DAWSON J:	And that is the second arm:

We find it unnecessary however to

discuss whether the broader bases are

relevant to the convenience of belonging

or whether they pertain rather to the

ultimate discretion imposed by section 142.

(Continued on page 71)

C2T41/l/JM	70	13/10/88
Municipal

MR GIUDICE:  Your Honour, we say it is capable of bearing

that interpretation without an unreasonable or

an unduly strained approach. And the reference as

to deciding the "conveniently belong" question,

in my submission, may easily be referable in

--context to looking at the whole of section 142

rather than to a particular part of section 142. The question of the weight to be given to

the various considerations, obviously, were a
matter for the Commission. Could I refer to

the case of DENVER CHEMICAL MANUFACTURING CO

V COMMISSIONER OF TAXATION which it is not necessary

for the Court to go to but if I could refer briefly

to a very short passage froQ the decision of

His Honour Mr Justice Dixon. It is reported

in 79 CLR 296, and Hjs Honour's comments are

9n~page :13~ His Hc~our says this:

- .

_Again, although.it is not this case,

the fact that ti.1e precise retrs0nc"on which

tKe Bocrd acced are not stat~d and are not

known will not prevent tttt'judicial =eview

of their decision. But in such a rase it

is probably nec~ssary that, on a full

consideration of the ma~erfal which the

Board had before it, the Court should be

able to say that the decision of the Board could not be explained on any ground which

would be consistent with the valid exercise

of functions committed to it. That is a

broad statement of the considera~ions wh~ch

will induce the Court to overturn a discretionary

TL;.2 decision by an administrative tribunal. ,

q	And that passage is relied upon in this way, that it is submitted the &ecisio.i can clearly
be explained on grounds which are consistent
with a valid exercise of the Commission's discretion
and despite what may b~ some slight ambiguity, nevertheless the Commfssion did not exceed its j uri sd id. ton.
BRENNAN J:	How much longer do you expect the remainder of your argument to take, Mr Giudice?
MR GIUDICE:	Your Honour, I have effectively finished my

submissionsbut there was a question raised in

relation to section 60 and the only thing that

I can say about that At the moment is th~t as

a matter of fact, in thi~ case, I do not think

the Commission made any orders and in that event,

at least in the technical - - -

C2T43/l/ND-	71	13/10/88
Municipal

BRENNAN J: It may be better if we were to adjourn now

and give you an opportunity to consider what

you would wish to say about that after the

luncheon adjournment. The Court will adjourn

until a quarter past two.

T43	AT 12.50 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2. 16 PM:
BRENNAN J:  Yes, Mr Giudice.
MR GIUDICE:  If the Court pleases, could I make available

some copiesof the PROFESSIONAL ENGINEERS case

that was referred to this morning.

BRENNAN J:	Thank you.
MR GIUDICE:	I will not take the Court to it, but the Court

may be assisted in connection with the common

vocation argument by the passages at page 151

to page 153. The question of section 60 was

raised this morning. Perhaps sadly for my client,

my only contribution to that is to indicate that,

so far as I am aware, no orders were actually made

by the Full Bench which probably means that

section 60 would not have any application in that

situation. It only applies, I think, to protect

orders and awards.

Nevertheless, as I understand my learned

friend's submissions, certiorari is not sought as

a separate remedy but rather as ancillary to

mandamus. Those are the submissions of my

clients, if it please the Court.

BRENNAN J:  Thank you. Mr Kenzie.

MR KENZIE:  If it please the Court, we would confirm our

learned friend's comment about the absence of an

order. We have had inquiries made at the registry

having regard to the question asked by

Your Honour Justice Gaudron before the luncheon adjournment, and accordingly section 60 rather

falls out of the picture. There is, of course,

the decision of Their Honours, but section 40(4)

of the CONCILIATION AND ARBITRATION ACT suggests

that the date of an order or of an award there is

no dispute that the decision could have amounted

to an award being an order under section 4 of the

Act.

C2T44/l/HS	72	13/10/88
Municipal

MR KENZIE (continuing):  The date is the date of the signed

copy of the order or award under section 40(4).

There has certainly been no order or award made.

Accordingly, one is driven back to the comments of

His Honour the Chief Justice then the Acting

Chief Justice and Your Honour Mr Justice Brennan in

-the earlier REG V COLDHAM; EX PARTE AUSTRALIAN

WORKERS UNION, (1984) 153 CLR 415,and at page 418 -

this really is for completeness Your Honours but
the Court should have a reference to it. There

is discussion of section 60 on page 418 and

including the judgment of His Honour Mr Justice Kitto
in COX's case and MURRAY's case, but ~t the bottom

of page 418:

The object of a provision of this

kind is generally to protect the award

or ordPr from challeng~. Consequently, the r.1aking of the award 0r order is the occasion £or caking the privative clause

into account in interpreting the Trib,_,':1.al' s

authority or power more liberally. 3efore

the award or order is made the Trjbunal

will ½e held to a str~ct construction ot

its powers uninfluenced by the clause,

thereby enabling the grant of prohibition,

notwithstanding that had the proceedings

reached the stage when an award or order

was made prohibition could not have been

obtained.

Then, Your Honours go on to consider the rather

more difficult question which would have perhaps

arisen if an order had been made. Maf we say,

simply oy way of aside, that our ~ubmission, in any

evenL.'.,.would have been that section 60 did not

~pply, but it does not seem to be ~rofitable to go

into that now, Your Honours. So, Your Honours, in

relation to our friend's submissions all that we

desire to say is that a re~ding of the PROFESSIONAL

ENGINEERS'case, part of which w~s set out in the

whatever else it dealt witL, and it may be that it	Industrial Registrar's judgment will disclose that
went to matters of discretion, it also and
substantially dealt with questions of "conveniently
belong".

(Continued on page 74)

C2T45/l/SR	73	13/10/88
Municipal

MR KENZIE (continuing):  As we understood our friend he

ultimately was driven to agree that the language of the decision of the Full Bench in the present matter was consistent with it being an exercise of

the jurisdiction under the first part of section 142,
amr the second part of section 142, in that event.

In our submission, there was a relevant breach of

the rules of natural justice and mandamus would go.

We otherwise do not seek to take the matter further,

Your Honours, and they are our submissions.

BRENNAN J:  Thank you, Mr Kenzie. The Court will consider

its judgment in this matter.

AT 2.22 PM THE MATTER WAS ADJOURNED SINE DIE

74 13/10/88

Municipal